We are now months into the COVID-19 pandemic, and it can feel at times like we are living in a completely different world. One can wonder whether life will ever be the same.

It appears, however, there are some things that never change—as Foodora couriers in Canada learned recently, one of those things is the lengths to which some employers will go to avoid a union drive. Foodora has unceremoniously fled the country, rather than face the prospect of collective bargaining.

Foodora and the Canadian Union of Postal Workers

Foodora and the Canadian Union of Postal Workers (CUPW) had been engaged in a long battle over CUPW’s application for certification as bargaining agent of the food delivery app’s couriers in Canada. The union scored a historic victory in that battle in February of this year, when the Ontario Labour Relations Board ruled that the couriers were dependent contractors for the purposes of the Labour Relations Act, and were therefore able to access the collective bargaining regime under that legislation.

Two months later, Foodora announced that it was closing all operations in Canada effective May 11, 2020, shortly after which it filed for bankruptcy protection. To justify its decision, the company pointed to economic reasons and the supposed saturation of the Canadian food delivery app market. The suspicious timing of Foodora’s move was lost on absolutely no one, however, and its claims of economic hardship were particularly unconvincing, since the food delivery business has exploded during the pandemic.

Foodora’s History of Shutting Down

If there were any doubt about Foodora’s true motivations, the company has a history of shutting down in the face of a legal challenge to its misclassification of employees. In Australia, like in Canada, Foodora attempted to characterize its couriers as independent contractors. When Australia’s Fair Work ombudsman challenged that classification, Foodora fled the jurisdiction.

CUPW has, unsurprisingly, filed an unfair labour practice complaint, arguing that the decision to shut down was motivated at least in part by a desire to avoid unionization. Unfortunately, though, even if this complaint is successful, the union and its members can only hope to receive some monetary compensation. Although CUPW has asked for reinstatement of employees in its complaint, the labour board likely cannot order Foodora to restore its Canadian operations, a remedy it has declined to grant in the past.

Lessons to be Learned

What are the lessons to be learned from the Foodora unionization drive, and its abrupt end? Some have argued, with good reason, that this case exposes the obvious flaws in our labour relations regime. The odds are stacked against unions and their members, particularly in certain sectors like the ‘gig’ economy, making it virtually impossible to successfully unionize. As a result, the legislature needs to seriously consider alternate modes of organizing and bargaining, so that workers like the Foodora couriers are not left behind. (See here for an interesting paper on organizing gig economy workers, published by the ILO.)

Another important takeaway from this case is that we need better oversight of businesses that improperly classify employees as independent contractors. The protections under the Labour Relations Act, as well as minimum standards under the Employment Standards Act, are afforded to “employees”, which, in the case of the Labour Relations Act, expressly includes “dependent contractors”. To avoid these protections, many companies characterize workers as independent contractors in their written contracts, or simply treat them as such, even when the relationship clearly meets the definition of an employment relationship.

Indeed, Foodora appears to be an example of a business whose success depends upon misclassifying its employees. The company’s hasty withdrawal from Canada following the Ontario Labour Relations Board’s ruling suggests that this ending to the Foodora story was, therefore, inevitable. If a company can only turn a profit by evading employment standards protections for its workers, it arguably should not be operating at all.

Employee Misclassification

This result, however inevitable, came at considerable expense to Foodora’s couriers and their union. The onus should not be on them to engage in a months-long legal battle to confirm their proper classification as employees. Employee misclassification appears to be rampant in the ‘gig’ economy, and so the time has long since past for the government to take a more proactive role in scrutinizing these businesses, to ensure that minimum employment standards are being met. Only significant oversight and serious penalties will stop other employers in the gig economy from using misclassification to their advantage.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

Many workers have had their vacation plans put on hold by the COVID-19 pandemic, but still have vacation time to use. Here are the answers to some of the most frequently asked questions about taking vacations with pay.

How much vacation does my employer have to give me?

Your employment contract and any applicable employer policies may outline your vacation entitlements. If you’re a unionized worker, check your collective agreement.

In Ontario, the Employment Standards Act sets the bare minimum terms and conditions of employment for most workers. It guarantees an employee who has worked for an employer for less than five years at least two weeks of paid vacation after each year of employment. An employee who has worked for an employer for more than five years is guaranteed at least three weeks of paid vacation a year. These are minimums. An employer may provide more vacation to its employees, and some employees, including those represented by a trade union, may be able to negotiate greater vacation entitlements.

Some Ontario workers are exempt from this and other parts of the Employment Standards Act. The list includes lawyers, registered massage therapists and commissioned salespersons as well as workers employed in commercial fishing and on most farms. If you are one of these workers, your vacation entitlement is subject only to negotiation with the employer.

Other Ontario workers are employed by federally regulated employers such as banks, telecommunications companies and First Nations band councils. For these workers, the Canada Labour Code guarantees similar entitlements as the Ontario legislation, except that the federal legislation additionally entitles employees with 10 or more years of service to at least four weeks of vacation with pay.

What if I’ve been on leave because of COVID-19?

Some workers are eligible for infectious disease emergency leave under the Employment Standards Act or leave related to COVID-19 under Canada Labour Code as a result of the coronavirus pandemic. Workers can postpone their vacations until after the end of this leave, even if they were required to have taken it within the duration of the leave.

Is it the same for other types of leaves, too?

Yes. The Employment Standards Act entitles employees to various unpaid leaves of absence like pregnancy and parental leave, family responsibility leave and sick leave. Federally regulated employees are guaranteed similar entitlements under the Canada Labour Code, in addition to leave that enables Métis, Inuit and First Nations workers to engage traditional practices including hunting, fishing and harvesting.

Workers can defer their vacation during any such leaves. An employer cannot force employees to take vacation instead of any other leave entitlements.

I’m working from home. Can I wait until my office reopens to schedule vacation?

That may be up to your employer. An employer has the right to determine when any of its employees take vacation, unless an employee’s contract of employment or collective agreement says otherwise.

The only limit on this discretion is that employer’s must allow employees to take their vacation within ten months after the year in which it was earned.

You also cannot be forced to split up your vacation. An employer has to assign vacation in a single period of at least one week, under the Employment Standards Act, unless the employee agrees otherwise. The Canada Labour Code requires employer to approve vacation in a single period unless the employee asks to take it in more than one period.

If work has slowed down because of the coronavirus, employers may want employees to use up vacation while lockdown measures are in place. That said, an employer will typically attempt to agree with their employees when their vacation will be scheduled. In unionized workplaces, vacation may be scheduled on the basis of seniority.

What if I travel for vacation this summer?

You may want to stick close to home due to the COVID-19 public health precautions, even if lockdown restrictions are easing up in some places. The Ontario government is still advising residents to stay at home as much as possible and practice physical distancing to limit the spread of COVID-19. Anyone who may have been exposed to COVID-19 is advised to get tested and self-isolate for at least 14 days. The federal government is advising that we avoid all non-essential travel outside of Canada. It is presently mandatory for all travellers entering Canada to isolate or quarantine themselves for 14 days to limit the spread of COVD-19.

 If I don’t use it, can I lose it?

Your employment contract may limit the amount of vacation with pay you can carry over from one year to the next. If that is the case, then you may be required to forfeit any unused vacation entitlements beyond the minimum guarantees in the Employment Standards Act or Canada Labour Code. An employer can never deprive employees of these minimum statutory entitlements.

When do I get my vacation pay?

Vacation pay is due at the start of your vacation or the next regular pay day, although in some cases Ontario employers will pay their employees the vacation pay that has accrued in each pay period. Workers entitled to two weeks’ vacation must receive vacation pay of at least 4% of their gross wages in the prior year. Workers entitled to three weeks’ vacation must receive at least 6% of their gross wages in the prior year. Federally regulated employees entitled to four weeks of vacation with pay must receive at least 8% of their gross wages in the prior year.

If I don’t take vacation, do I still get vacation pay?

 Vacation pay accrues on wages earned as soon as you start working. The employer holds onto it until you take vacation. You can agree to forego vacation, if the Director of Employment Standards approves, but your employer cannot forego paying your vacation pay. But, really, you should take your vacation.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

Have you missed the deadline to apply for long term disability (LTD) benefits? There might still be a recourse available.

What does the law say?

Law makers realized that in some cases, claimants will miss the deadline to apply for LTD benefits even though they acted reasonably. A late claim could be devastating for individuals who can no longer return to work and are denied benefits. Many provinces have enacted laws, such as the Courts of Justice Act and the Insurance Act in Ontario, which allow courts to grant “relief from forfeiture.” This relief is intended for individuals who will be disproportionately penalized for failing to respect the insurance plan deadlines, especially in cases where leniency will not cause significant harm to the insurer.

How will a court decide?

The decision whether or not to grant relief is entirely discretionary and will turn on the facts of each specific case. However, courts have developed a test to determine if claimants acted reasonably and if granting the relief will unjustly harm the insurer (Kozel v. The Personal Insurance Company).

Courts will only grant relief from forfeiture if there was imperfect compliance with a policy term, not if there was a breach of an important part of the contract. In general, missing the window to claim benefits has been considered imperfect compliance (Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co.).

There are 3 main factors that the court will assess in determining whether to grant relief from forfeiture:

1. conduct of the applicant;
2. gravity of the breach; and
3. disparity between the possible harm to the denied claimant and the harm to the insurer.

1. Conduct of the applicant

First, courts will analyze the reasonableness of the claimant’s actions. They are likely to consider the following issues:

• How quickly did you act once you realized the claim was late?

Claimants are expected to act expeditiously once they realize that they have missed the deadline to claim LTD benefits. The line here is not clear-cut, but courts have found that claimants acted unreasonably when they showed “ongoing negligence” or when they learned of overdue payments but then still took many months to respond.

• What if you did not know you were eligible?

In Dube v. RBC Life Insurance Co., the claimant had received conflicting information regarding his LTD benefits and then left an envelope containing important information unopened for many months. As a result, he was not aware that he could make a claim, even though he was in touch with the employer and the insurance company. The court found that while he had not been “the model of perfect diligence” but that his actions were not unreasonable. They granted him relief.

• What if your employer gave you the wrong advice?

The Court might be less likely to fault employees in cases where employers were partially responsible for the lapse. Although it is not firmly established that employers have a duty of care to assist employees in applying for benefits, the Ontario Superior Court has referenced such a duty in some recent cases (see, e.g., Ferguson v Halton, 2018 ONSC 5675).

2. Gravity of the breach

Second, courts will examine the potential harm to the insurer if the application is allowed after the deadline. The insurer could argue that given the delay, it lost the ability to make a timely medical investigation or to assist the claimant in rehabilitation in order to avoid a longer-term absence from work. That’s what the insurer argued in Nguyen v. SSQ Life Insurance Co., but the Ontario Superior Court found that although there was harm, it was not sufficient to prevent a claim for relief from forfeiture and the late claim was allowed to proceed.

3. Balancing of damages

Third, courts will compare the harm to the applicant caused by the loss of coverage with the harm to the insurer by having to consider the late application. At this stage, courts will evaluate the income the claimant will lose if relief is not granted and weigh it against the damages suffered by the insurer. 

CONCLUSION

Relief from forfeiture is entirely discretionary and it is up to the court to assess the particular details of each case and decide whether to grant it. In general, Ontario courts seem to be showing some leniency for late claimants. If you have missed the deadline to apply for LTD and been denied benefits as a result, consult a lawyer.

Ravenlaw gratefully acknowledges the contribution of this post by summer student Anna Rotman.

Workers are typically thought of as either “employees” or “independent contractors”. Employers seek to classify their workforce as “contractors” to avoid paying for mandatory benefits under the Employment Standards Act (ESA), among other things, which only protects employees as defined under the ESA.

However, Canadian courts recognize an intermediate position where, although the worker is not an employee, they are still economically dependent on one contract. These so-called “dependent contractors” are entitled to reasonable notice upon termination of the contractual relationship.

In a recent decision, the Ontario Court of Appeal in Thurston v Ontario (Children’s Lawyer), 2019 ONCA 640, clarified the circumstances in which someone can be classified as a “dependent contractor”. The Court ruled that a dependent contractor relationship is one in which there is “a certain minimum economic dependency, which may be demonstrated by compete or near-complete exclusivity.”[1] This decision could be highly relevant for workers in the modern economy who depend on precarious contract work to make a living.

Background

Ms. Thurston was a sole practitioner lawyer who provided legal services to the Office of the Children’s Lawyer (“OCL”) for 13 years. Each year, the OCL had Ms. Thurston and its other lawyers sign a fixed-term contract, which made up about 40% of Ms. Thurston’s annual income. According to the contract, the OCL made no guarantee of the total value or volume of work that Ms. Thurston would receive, and the OCL could terminate the contract in any circumstances, without notice. When the OCL decided not to renew her contract in 2015, Ms. Thurston claimed that she was a dependent contractor, and therefore that she was entitled to 20 months’ notice of termination.

The Motion Judge’s Decision

When Ms. Thurston filed her lawsuit at the Superior Court claiming that she was a dependent contractor, the OCL brought a motion asking the judge to dismiss the case. The motion judge ruled against the employer. The motion judge noted that the relationship was continuous and permanent for 13 years and that Ms. Thurston was seen as an employee by the public. In addition, 40% of Ms. Thurston’s average billings from her legal practice came from OCL. The OCL appealed the motion judge’s decision to the Court of Appeal.

The Court of Appeal’s Decision

The Court of Appeal reversed the motion judge’s decision and dismissed Ms. Thurston’s case. The court reaffirmed that a worker claiming “dependent contractor” status must lead evidence showing “minimum economic dependency” on the contract. The court explained that a plaintiff demonstrates economic dependence with evidence of near-complete exclusivity:

In distinguishing dependent from independent contractors, McKee made clear that exclusivity of service provision, and therefore of income, is key. As the court put it, “exclusivity is determinative, as it demonstrates economic dependence”; exclusivity, the court said, is a “hallmark” of the dependent contractor category: McKee, at para. 34. In Keenan, at para. 25, this court emphasized that exclusivity was “integrally tied to the question of economic dependency” and that the determination of exclusivity requires consideration of the full history of the relationship in question.[2]

The court based its conclusion on other court decisions that considered this issue and identified near-complete exclusivity as the key factor. In some cases, courts have decided that someone can be a dependent contractor if “substantially more than a majority” of the dependent contractor’s income was earned through one contract.

In Ms. Thurston’s case, the court ruled that she failed to establish the required degree of exclusivity which would demonstrate her economic dependence on the OCL. Ms. Thurston maintained an independent legal practice throughout her time with the OCL, and her work with the OCL only averaged 39.9% of her annual billings – hardly exclusive service. The court confirmed that “near-exclusivity necessarily requires substantially more than 50% of billings.”[3] While the OCL was certainly an important client for her, the Court of Appeal found that the motion judge’s decision failed to appropriately consider the facts and apply the exclusivity test, and for that reason, the motion judge’s decision was unreasonable in the court’s opinion.

Discussion

The Court of Appeal’s decision is a step backwards for dependent contractors who rely on one contracting party for a large portion of their income but would not meet the Court’s onerous “near-complete exclusivity” threshold. Although the decision simply reaffirmed what the Court of Appeal has said in previous decisions (see for example McKee v Reid’s Heritage Homes Ltd., 2009 ONCA 916; Keenan v Canac Kitchens Ltd., 2016 ONCA 79), nevertheless, the Court’s guidance in this case on what constitutes a dependent contractor is useful to those who work through contracting parties. This case is the latest in a long line of decisions confirming that in classifying a work relationship, courts will focus on the substance of the relationship. For workers whose income depends on precarious contract relationships, this means that an employer cannot hide behind the “independent contractor” label if the facts point to a different conclusion.

If you have any questions regarding your employment situation, consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP. 

[1] Thurston v. Ontario (Children’s Lawyer), 2019 ONCA 640  at para 23.

[2] Thurston, supra, at para 25.

[3] Thurston, supra at para 30.

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

By Geoff Dunlop and Raphaёlle Laframboise-Carignan

Since our post on the introduction of the Canada Emergency Response Benefit (CERB) (which you can read here), the federal government has announced changes to the program to address some of the identified gaps in eligibility. Based on these most recent changes, many more individuals should qualify to receive the CERB. This post will outline who is now eligible, and who is still left out, of this important benefit.

What is the CERB?

The CERB is a benefit to replace income lost due to the COVID-19 pandemic. It is a flat, taxable amount for all eligible claimants: $2,000 for every four weeks you are eligible, up to a maximum of 16 weeks, between March 15 (retroactive) and October 3, 2020.

What has stayed the same?

To qualify for the CERB, you still need to be a resident of Canada of at least 15 years of age, and must have had at least $5,000 in income from work (employment or self-employment), EI maternity or parental benefits, or Quebec’s parental benefits program QPIP in the last year. These requirements have not changed with the expansion of the program.

What has changed?

Some of the eligibility criteria have been expanded, to allow more individuals to qualify for the CERB:

• You are no longer required to have had NO income from employment, self-employment, any EI or QPIP benefit for at least 14 days in a row. Instead, you can qualify for the CERB if you earned less than $1,000 in an eligibility period (that period is at least 14 days in a row if you are applying for the first time, and 4 weeks if you are applying again for a subsequent period).
• You can also qualify for the CERB if you are a seasonal worker who has exhausted your regular EI benefits, and are unable to undertake your seasonal work due to COVID-19. You must have received EI benefits for at least one week since December 29, 2019.
• Finally, you may qualify for the CERB if you have recently exhausted your regular EI benefits, and are unable to find work due to COVID-19. Again, you must have received EI benefits for at least one week since December 29, 2019.

These changes are retroactive to March 15.

Who is still left out?

The expansion of the CERB is welcome news, but, unfortunately, even the expanded version of this program still contains gaps that will leave many Canadians without access to this benefit.

Workers making $1,000 – $2,000 per month

One of the most important and much-needed changes to this program was to expand it to include workers who had experienced a significant reduction in hours, but who were still earning some income. Workers can now earn up to $1,000 per month and still access the CERB.

However, there is still an obvious gap in the program’s design—there are many workers who will be earning less from their employment than the value of the CERB, and yet they continue to be excluded from this benefit. It is unclear why the government did not expand access to all workers making less than the value of the CERB ($2,000 every four weeks), and simply deduct any amounts earned from the benefit.

Students seeking summer employment

As noted in our previous post, many students who were counting on employment during the summer months will not be able to find jobs due to the pandemic. However, because they did not lose a current source of income, they will not qualify for CERB, and most of them are unlikely to have been receiving EI regular benefits recently. Students who are about to graduate and were about to enter the job market will not have access to this benefit.

The government has reiterated that more help may be on the way for students, but no specifics have been provided so far.

Workers who have been unemployed for a long period

The benefit has been extended to anyone who has exhausted their EI regular benefits, only if they have received at least one week of EI benefits after December 29, 2019. Therefore, any unemployed workers who ran out of EI benefits before that time are still ineligible for the CERB.

Is it time for a universal benefit?

The most recent changes to the CERB will be met with criticism and questions about who continues to be left behind, in response to which the government will in all likelihood tweak the program further. Instead of the current piecemeal, incremental approach, many have called on the government to simply grant a $2,000 per month benefit to all Canadians, and reclaim it from those who did not need it through taxes next year. It remains to be seen whether this view will gain any traction within the government.

Updated information about the CERB and how to apply can be found here.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

On March 4, 2020, Morgan Rowe presented a workshop on human rights law, worker’s rights, and how these two sets of rights can be used to help individuals with disabilities challenge barriers in employment. The workshop was hosted by CUPE Local 2626.

The firm gratefully acknowledges the contribution to this post by articling student Zachary Rodgers.

The Office and Professional Employees International Union (OPEIU), represented by Wassim Garzouzi, recently scored a major victory for the privacy rights of workers across Canada. On December 9, 2019, Arbitrator Susan Ashley affirmed that employers in Canada cannot unilaterally impose random drug and alcohol testing on its unionized employees, despite the legalization of cannabis and the uniquely dangerous nature of the work in question.

The employer in this case, a helicopter company providing passenger transport to offshore oil operations, sought to initiate random drug and alcohol testing of its helicopter pilots (and other employees in safety sensitive positions) following the legalization of cannabis in Canada. At the time, the employer already had a robust drug and alcohol policy in place that allowed it to test employees in safety sensitive positions if there was reasonable cause to suspect the employee was under the influence of drugs or alcohol. The Union took no issue with “for cause” testing. The only issue at arbitration was whether the employer could force employees to submit to drug and alcohol testing at random (i.e. without cause).

The Union successfully argued that Canadian courts and arbitrators have long rejected random testing as an unreasonable violation of individual privacy rights. In Irving Pulp & Paper Ltd, the Supreme Court of Canada concluded that even in workplaces where safety is paramount, random testing is too great an infringement on employee privacy rights if there is no existing and pervasive problem of drug and alcohol use in the workplace.

Arbitrator Ashley rejected the employer’s argument that the legalization of cannabis in Canada had changed the legal landscape. She equally rejected the employer’s position that the uniquely dangerous work of flying helicopters offshore justified the violation of employees’ privacy rights. Significantly, the arbitrator found that, although oral swab testing is less invasive than other methods of drug testing, it still amounts to “an unjustified affront to the dignity and privacy rights of the affected employees.”

This award, in favour of the Union, is one of the first post-legalization decisions in Canada that affirms the Canadian model, which requires employers to demonstrate an existing and pervasive alcohol or drug problem in the workplace before random testing can be justified. Importantly, employers cannot rely on the legalization of cannabis to justify upending the status quo on drug testing in Canadian workplaces.

RavenLaw congratulates OPEIU on its hard-fought and successful defence of employee privacy rights in Canada.

On March 5, 2020, Anna Lichty and Megan Fultz represented Ravenlaw at the 2020 uOttawa Career Day at the Ottawa Conference and Event Centre.

Anna and Megan hosted four Community & Public Lawyering Roundtables, conducted a series of mock interviews with students interested in labour and employment law, and had the opportunity to meet and discuss our firm’s work with many first and second-year law students at a networking lunch. Thank you to the organizers for putting on this great event, and thank you to the uOttawa students for your engagement and enthusiasm!

If you’re a student looking for more information about the summer or articling experience at Ravenlaw, please contact us at studentrecruitment@ravenlaw.com.

This week, the Government has started accepting applications from employers for the Canada Emergency Wage Subsidy (CEWS), part of the Government’s economic response to the COVID-19 pandemic crisis. This new benefit is unprecedented in scope and is likely to be well received by many employers and employees. However, the design of this benefit arguably leaves too much power in the hands of employers.

What is the CEWS?

The CEWS is a wage subsidy intended to help employers that are struggling due to COVID-19, allowing them to recall employees that have been laid off, and to avoid future layoffs. Eligible employers will receive a subsidy for up to 12 weeks between March 15 and June 6, provided they can show the required reduction in revenue for that period. The Government has not imposed any size limit on eligible employers and has extended the benefit to all types of businesses, as well as not-for-profit organizations and charities. Only public institutions, such as schools and hospitals, are excluded.

How much does the subsidy cover?

The subsidy will cover up to 75% of wages on the first $58,700 that an employee earns, up to a maximum of $847 a week. There are special calculations for employees whose pay has been reduced since before the crisis, and for non-arm’s length employees.

Employees who have been laid off can become eligible retroactively for the CEWS if the employer rehires them. However, if those employees have received the Canada Emergency Response Benefit (CERB), and they will earn more than $1000 per month as a result of being rehired, they will have to repay the CERB.

Does the CEWS give too much power to employers?

This program is new and therefore may be revised and adjusted in response to public criticism, similar to the CERB. The Government may want to consider some of the ways in which this program’s design places too much power in the hands of employers.

No obligation on employers to pay remaining 25% of wages

The Government is not requiring employers to pay the remaining 25% of employees’ wages as a condition of eligibility for the CEWS. The Government has stated publicly that it “expects” employers to make best efforts to pay the remaining salary amounts, but it is unclear whether there will be any mechanism to enforce that expectation. As a result, there is a concern that many employers will recall employees at only 75% of their previous pay rate, or even potentially reduce the pay of existing employees. This program should obviously not create an incentive for employers to pay their workers less.

Employers decide the level of government benefit for workers

The CEWS (up to $847 per week) is a far more valuable benefit than the CERB ($500 per week). A worker who has been laid off due to COVID-19 is only eligible for the CERB, but that worker’s employer could choose to rehire them solely for the purposes of accessing the CEWS, thereby granting that worker access to a significantly larger benefit.

This program therefore gives a huge amount of power to employers to basically decide how much financial relief their workers will receive during this crisis. One way to fix this flaw is to increase the value of the CERB to make it equivalent to the CEWS.

Will the CEWS strengthen a claim of constructive dismissal?

While the CEWS appears to place workers at the mercy of their employers in many respects, one way in which it may hand some power back to workers is in claims for constructive dismissal.

Many employment law experts have questioned how courts will consider claims of constructive dismissal in these extraordinary circumstances. Some argue that the COVID-19 crisis may justify greater changes to the employment relationship than have previously been accepted, on the theory that a reasonable person in the employee’s position would not consider the change to amount to a dismissal in this unique context.

The CEWS offers significant relief to employers in meeting payroll obligations, and so it may play a role in the constructive dismissal analysis. A reasonable employee may, for example, consider themselves constructively dismissed if they are laid off or have their wages reduced, if the employer cannot prove that these changes were necessary despite the presence of the CEWS benefit.

These questions, unfortunately, will not be answered by the courts for some time. Therefore, it is important for employees to obtain legal advice before claiming constructive dismissal, to fully understand the risks and consequences.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

In Walker v Canada (Attorney General), the Federal Court of Appeal set aside a decision of the Federal Public Sector Labour Relations and Employment Board upholding the dismissal of a longer-service and discipline-free public service employee because the Board decision-maker failed to consider whether the employee’s state of mind mitigated her alleged misconduct.

The employee’s union, the Public Service Alliance of Canada, argued that “many of the actions for which [the employee] was disciplined were motivated by a desire to protect herself and other employees from threatening and possibly dangerous acts of her subordinate” whom she genuinely feared.

It is well-established, the Federal Court of Appeal concluded, that a labour adjudicator’s inquiry into the appropriate penalty for alleged misconduct “requires review of all the relevant surrounding circumstances, including mitigating factor’s such as the employee’s state of mind, which has a direct bearing on culpability.” Yet, the decision-maker in this case not only failed to address this issue but went so far as to state, on a related issue, that it was “not my role to determine whether … [the employee] had a legitimate fear for her safety.”

This judicial review decision represents one of the first times where the Federal Court of Appeal has applied the Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov. Vavilov instructed that an administrative decision-maker’s failure to address fundamental arguments raised before it may result in the decision being unreasonable due to a lack of transparency and intelligibility.

As the employee’s fear of her co-worker was central to her defence, the Court of Appeal found that it was directly relevant to the issues the decision-maker was required to determine and could have changed the outcome of the case. The Court of Appeal concluded that the Board decision-maker’s “failure to consider whether such fear constituted a mitigating factor renders it decision … unreasonable as it is impossible to discern from the decision what weight would have been attributed to this factor by the Board, had it considered it.”

The Federal Court of Appeal returned the matter to a different Board decision-maker for redetermination.

Andrew Raven and Michael Fisher appeared for the Applicant.