Workplace Harassment

Jacob’s Question: When I asked my Manager a fairly straightforward question, he answered me in a very condescending tone. He later apologized, and said he was having a bad day. I have never had a problem with my manger, but I found his response to be very demeaning. Is that workplace harassment?

Thank you for your question Jacob. In order to answer your question, it is first important to look at what is and is not workplace harassment.
1. What is Workplace Harassment?
Section 5 of Ontario’s Occupational Health and Safety Act defines workplace harassment as, “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”
Section 5(1) of the Ontario Human Rights Code states that “every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of:
i) Race;
ii) Ancestry;
iii) Place of Origin;
iv) Color;
v) Ethnic Origin;
vi) Citizenship;
vii) Creed;
viii) Sexual orientation;
ix) Gender identity;
x) Gender expression;
xi) Age;
xii) Record of offences;
xiii) Marital status;
xiv) Family status; and/or
xv) Disability.”

2. Examples of Workplace Harassment:
Examples of harassment include:
i) Making rude/degrading comments;
ii) Spreading rumors about an employee’s family status; and/or
iii) Making fun of an employee because of his/her beliefs.

3. What is NOT Workplace Harassment?
Harassment does NOT include:
i) An isolated incident of a minor nature for which a person has promptly apologized;
ii) Strongly expressed opinions that are different from others;
iii) Free and frank discussions about issues or concerns in the workplace without personal insults; and/or
iv) The legitimate and proper exercise of management’s authority.

4. Answer to Jacob’s question:
After having looked at the legal definitions and various examples of workplace harassment, it is our opinion that harassment has NOT been made out in this case.

This incident did not amount to harassment because:
i) Supervisors and Managers are allowed to make mistakes. Poor management skills are not enough to transform a poorly handled situation into harassment; and
ii) This was an isolated incident of a minor nature for which your Manager later apologized.
See Motor Coils Manufacturing Ltd and Unifor, Local 520 (Steacy) Re, 2015 OLAA No.263, for a similar example.

5. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment policies and procedures, providing training to staff members, and/or obtaining general employment law advice please contact Suzanne Desrosiers today at suzanne@sdlawtimmins.com or (705) 268-6492.

Experience, Integrity, Results.

Vacation Time and Vacation Pay

What is the difference between vacation time and vacation pay??

1. The Employment Standards Act:
Section 15.1(1) of the Employment Standards Act defines and sets out vacation time and vacation pay.

2. 12-Month Vacation Entitlement Year:
A 12-month vacation entitlement year is the 12-month period beginning on the date that you were hired.
For example, if you were hired on November 1, 2017, that 12-month vacation period would end on October 31, 2018.

3. Vacation Time:
Vacation time refers to the number of paid weeks that salaried employees are entitled to take each entitlement year. The number of weeks that an employee can take off is dependent on the number of years that they have worked for his/her employer.
Employees who have worked for their employer for less than five (5) years are entitled to two (2) weeks of vacation each entitlement year.
Employees who have worked for their employer for five (5) years or more are entitled to three (3) weeks of vacation each entitlement year.

4. Vacation Pay:
If you are paid by the hour in Ontario, vacation pay refers to a percentage of your gross wages that may be banked or paid out to the employee, each pay period. The percentage paid to the employee is determined by the number of years that the employee has worked for his/her employer.
For employees that have worked for their employer for less than five (5) years, vacation pay must be at least four percent (4%) of their gross wages earned during the entitlement year.


For employees that have worked for their employer for five (5) years or more, vacation pay must be at least six percent (6%) of their gross wages earned during the entitlement year.
5. Example Vacation Pay:
Andrew started working as an Electrical Engineer at Engineering Inc. on September 1, 2014. His position is salaried.
Andrew’s standard vacation time runs from September 1 to August 31 each year. In his first entitlement year, Andrew is entitled to two (2) weeks of vacation.
Andrew is entitled to two (2) weeks of vacation for the following entitlement years:
i) September 1, 2015 to August 31, 2016;
ii) September 1, 2016 to August 31, 2017;

iii) September 1, 2017 to August 31, 2018; and
iv) September 1, 2017 to August 31, 2019.
On August 31, 2019, Andrew will have completed five years of employment at Engineering Inc. and will be entitled to take three weeks of vacation each entitlement year thereafter.
6. Example: Vacation Time:
Jody works part-time as a Barista at Starbucks Canada. Jody started working at Starbucks in 2017, and she is paid $14.00 per hour.
In her first vacation entitlement year, Jody earned gross wages of $30,000. Jody was therefore entitled to $1,200.00 in vacation pay (4% of her gross wages).

7. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment policies and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or (705) 268-6492.

Marijuana in the Workplace

What does the legalization of marijuana mean for Canadian Employers?

1. The Current Legal Statue of Marijuana:
Today, the possession, production, and trafficking of marijuana is still illegal in Canada, as per Schedule II of the Controlled Drugs and Substances Act.

2. Government Announcement:
The Government of Canada has recently announced its intention to:
i) Legalize, strictly regulate, and restrict access to Cannabis for non-medical purposes;
ii) Restrict access of marijuana of youth; and
iii) Stop criminals from profiting from illicit marijuana trade

3. Why is the Federal Government looking to legalize and regulate access to marijuana?
The Government states that the strict production, distribution, and sale of marijuana will:
i) Enhance public safety;
ii) Better protect the public’s health;
iii) Make it less profitable for drug dealers and growers; and
iv) Make it less accessible to young people.

4. The Duty to Accommodate:
By law, Ontario employers are required to accommodate employees with disabilities up to the point of undue hardship. Employees that use medical marijuana or employees that are addicted to marijuana are to be accommodated.
Employers should be leery of making stereotypical comments/assumptions about an employee’s ability to do their job when, they have been prescribed medical marijuana.

5. Limits on the duty to accommodate:
The use of medical marijuana DOES NOT allow an employee to:
1. Be impaired at work;
2. Compromise his/her safety;
3. Compromise the safety of others;
4. Smoke in the workplace;
5. Have unexcused absences; and/or
6. Show up late for work.

6. Safety in the Workplace
Employers are also required to ensure safety in the workplace.

7. Workplace Policies:
With the upcoming changes, employers will likely need to set specific policies regarding the use of marijuana in the workplace.
Be careful, a zero-tolerance policy may interfere with an employer’s duty to accommodate, as it can cause discrimination against employees who have been prescribed medical marijuana. A zero-tolerance policy may be allowed in the safety-sensitive sector.

8. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment policies and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.

Equal Pay for Equal Work

Bill 148: “Fair Workplaces, Better Jobs Act”
Question: What is Equal Pay for Equal Work?

1. Bill 148 – “A Plan for Fair Workplaces and Better Jobs”

Bill 148 has made a number of changes to both the Employment Standards Act, 2000 and the Labour Relations Act, 1995. The Bill was passed on November 22, 2017.
One of the significant changes is referred to as “equal pay for equal work.”

2. Equal Pay for Equal Work:

Under the Employment Standards Act, when two employees perform substantially the same kind of work (similar work conditions, skills, and responsibility), an employer CANNOT pay one them less than the other on the grounds of:

i) Sex; and/or
ii) Employment.

3. Difference in Rate of Pay:

A difference in rate of pay is a difference in:

1. Hourly rate;
2. Salary;
3. Overtime rate; and/or
4. Commission rate.

4. Similar Work Conditions:

Similar work conditions include a similar:

i) Work environment (office or outdoors);
ii) Exposure to Weather (rain/snow; or
iii) Health and Safety Hazards (chemicals/heights).

5. Similar Skills:

Similar skills refer to the knowledge, physical skills, and motor skills needed to perform a job. Examples include:

i) Education;
ii) Training;
iii) Experience; and/or
iv) Manual dexterity.

6. Similar Responsibilities:

Similar responsibilities refer to the employee’s accountability and authority needed to perform his or her job. Examples include:

i) The number of decisions that he/she needs to make;
ii) Being accountable for the safety of other staff members;
iii) Acting in a supervisory capacity; and
iv) Being responsible for money;

7. Example:

Sam and Joe work as full-time Construction Laborers for Construction Co. in Timmins, Ontario. Joe started working for Construction Co. in 2007, and Sam started working for Construction Co. in 2016.
Both Sam and Joe have a Building Construction Technician Diploma from Canadore College. They are both responsible for blueprint reading, estimating residential structures, and wood framing.
While Sam and Joe perform the same work, work in the same establishment, use the same skills to perform their job, and have substantially the same responsibilities, Joe makes two times per hour what Sam makes.
Does this constitute a violation of equal pay for equal work under the Employment Standards Act?

8. Answer

In this case, the difference in rate of pay for substantially the same job is due to the seniority system. Joe has worked for Construction Co. since 2007, whereas Sam only started working for Construction Co. in 2016. As such, there is no violation of equal pay for equal work under the Employment Standards Act.

9. Suzanne Desrosiers Professional Corporation:

For assistance in updating your employment policies and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.

Bill 148: “Fair Workplaces, Better Jobs Act”

Bill 148: “Fair Workplaces, Better Jobs Act”
Question: I own a pub and family restaurant in Timmins, Ontario, and am concerned about the impact that Bill 148 will have on my business. When will Bill 148 come into effect, and how will it impact my restaurant?

1. Enforcement:

If Bill 148 passes, it will come into effect on January 1st, 2018. All labor relations will be in effect six months after that date.

3. Proposed Changes:
Notable changes to Bill 148 include changes to:
1. Minimum wage,
2. Equal pay for equal work,
3. Overtime pay,
4. Scheduling,
5. Vacation and public holidays,
6. Personal emergency leave,
7. Family medical leave, and
8. Child death leave and crime related disappearance leave.

5. Equal Pay for Equal Work:

Bill 148 will require that casual, part-time, temporary, seasonal, or temporary help agency employees are paid the same amount as full-time employees that perform the same job.
If a part-time employee believes that they are not receiving the same wage as a full-time employee, they will be able to request a review of their wages, without fear of reprisal. The employer will then have to respond to that request with either:
1. An adjustment in pay or,
2. A written explanation as to why their wage is not changing.
Exceptions to the requirement for equal wages are based on:
1. The seniority system,
2. The merit system, and/or
3. Systems that determine pay by quality or production,
In other words, if at your restaurant you have a waitress that has been in your employment for twenty plus years, and another waitress that has been in your employment for five years, they do NOT need to be paid the same hourly wage.

7. Scheduling:
Bill 148 calls for employers to pay their employees a minimum of three hours if:
1. The employee has worked under three hours,
2. The employee was on call, or
3. The employee’s shift was cut short, or cancelled without 48 hours’ notice.
Bill 148 will also ensures that:
1. Employees have the right to request changes to their schedule after three months of employment without fear of repercussions, and
2. Employees can refuse to accept shifts without fear of reprisal if their employer asks them to work with less than four days’ notice.
So, in your business, if you schedule a waitress to work for a dinner shift, and they only end up working for one hour because it is not busy that night, you will be required to pay them for a minimum of three hours work.

9. Personal Emergency Leave:
Under Bill 148, employees will be entitled to ten days personal emergency leave. Two of those days will be paid, and eight days will be unpaid. The two paid days must be granted before the eight unpaid days.
Moreover, employers are no longer able to request that an employee to provide them with a medical note.

11. Child Death Leave and Crime Related Disappearance Leave:
Under Bill 148, if an employee’s child passes away, or disappears, they will be entitled to at least six months of unpaid leave.
If the employee is charged with the death or disappearance of that child, they will be unable to take this type of leave.

13. Recommendations:

Employers, please be SURE to:
1. Plan ahead,
2. Revisit and update employment contracts, policies, and procedures,
3. Prepare training ahead of time for all staff members,
4. Consider how you may be exposing yourself to potential claims and take action accordingly, and
5. Review the budget for increased expenses in:
a. Paid vacation,
b. Equal pay for equal work, and
c. Overtime pay.

2. Government Rationale for Bill 148:

Premiere Kathleen Wynne has stated that as it stands, many Ontario families are having a difficult time living off of part-time and/or contract employment. Bill 148 is designed to allow Canadian families to reach their full financial potential.

4. Minimum Wage:
Ontario is increasing its general minimum wage to fourteen dollars an hour on January 1st, 2018, and fifteen dollars and hour on January 1st, 2019.
Exceptions to the increase in minimum wage include:
1. Liquor servers,
2. Students under the age of eighteen,
3. Hunting and fishing guides, and
4. Homeworkers.
Therefore, as some of your employees are likely liquor servers, this increase in minimum wage will NOT apply to them. However, it is important to keep in mind that liquor servers will continue to receive the same percentage increases as the general minimum wage.

6. Overtime Pay:
Where an employer has an employee that wears a number of different hats, the rate of pay for each job title will differ.
Moreover, the hours that the employee has worked in both jobs will be counted towards the employee’s total weekly hours with respect to overtime.
For example, if, at your restaurant, you have an employee that has worked twenty-five hours waitressing, and thirty-five hours in the kitchen in one week, that employee will be entitled to overtime pay based on the combined hours of BOTH jobs.

8. Vacation and Public Holidays:

Bill 148 will ensure that employees have three weeks of paid vacation after five years of service with the same employer. It is important to note that employees are entitled to their average regular daily wage when taking vacation.

10. Family Medical Leave:

Family Medical Leave will allow employees to provide care or support to a family member that has:
1. A serious medical condition, or
2. Is at risk of death.
Employees will be able to take twenty-seven weeks of unpaid leave in a fifty-two-week period.

12. Penalties for Non-Compliance:
If employers are non-compliant with Bill 148 once it comes into effect, they may be liable to pay a fine between $350 and $1,500.
The proposed changes will allow the Director of Employment Standards to publish:
1. The names of the individuals who have been issued a penalty,
2. The description of the contravention,
3. The date of the contravention, and
4. The amount of the penalty.
This type of negative publicity could deter well-qualified individuals from applying at your place of business, and could discourage customers from visiting your restaurant.

14. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment contracts, policies, and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.

Dangerous Driving, Section 249 Of The Criminal Code – Timmins, ON

The following is general information and not legal advice, so please call our office to make an appointment to learn more about your particular offence.

Dangerous driving is one of the most serious driving offences in Canada and the penalties associated with it on a conviction are appropriately severe, including the fact that you will have a criminal record.

This charge involves operating a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, and also includes the operation of a boat, water skis or a towed object on or over Canadian waters. Once the trier of fact is satisfied that your actions match the wording of this Criminal Code provision beyond a reasonable doubt, they must turn their mind to the mental element of the crime. Essentially, the Crown will have to prove that your actions were a marked departure from the standard of care of a reasonable person in your circumstances.
Each case turns on its particular set of facts. A momentary loss of attention while driving may not be sufficient to be convicted. For example, a driver of a vehicle who lost consciousness or fell asleep for a few seconds and collided with an oncoming vehicle, thereby killing its occupants, was ultimately found not guilty of this charge. However, if you are aware of a medical condition (ex. seizures) and you do not take the proper precautions for this pre-existing medical condition, the occurrence of this medical condition while driving may not be a defence to this charge. So, you may not believe you have a defence but schedule an appointment with our office to be sure.

Contact our office to see how we can best assist you in defending yourself. We will request your Disclosure package from the Crown Attorney’s office and review it with you to explore your defence options.

CONSEQUENCES

Apart from having a criminal record, a conviction of dangerous driving will cause you to have your licence suspended for at least one year. You may face a longer suspension if you’ve been convicted of this charge previously, or if you’ve been convicted of other specific charges as outlined at s. 41 of the Highway Traffic Act (ex. impaired driving under s. 253 of the Criminal Code) within the last ten years.

You could face up to 5 years in prison as a result of a conviction of dangerous driving. However, if the dangerous driving caused serious bodily harm, then you could be facing up to 10 years in custody, or up to 14 years of custody if the dangerous driving caused death.

Additionally, you could face other charges in addition to the dangerous driving if you participated in any other underlying illegal conduct while driving dangerously, such as speeding or being impaired.

Contact our office to hear about your options and choose your best course of action.

Careless Driving (Section 130 Of The Highway Traffic Act) – Timmins, ON

Driving is a privilege not a right, and improper behaviour while behind the wheel of a vehicle may cause you to face consequences in a number of situations. For example, inattentiveness or inconsideration of other motorists on a highway could cause you to face a charge of careless driving. This is a broad charge that can be applied to various driving scenarios, from being involved in a serious high-speed collision to a minor traffic concern.

Careless Driving (under section 130 of the Highway Traffic Act) states:

“Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.”

The Justice of the Peace must be satisfied beyond a reasonable doubt that you drove the vehicle on a highway without due care and attention or without reasonable consideration for other people using the highway.

The charge of careless driving is found at section 130 of the Ontario Highway Traffic Act. It is a strict liability offence. This means that the Crown must only prove that you committed the alleged act—that you drove the vehicle on the highway without due care and attention or without reasonable consideration for other persons using the highway. The Crown does not have to prove a mens rea element of the charge—more simply, the Crown does not have to show that you intended to commit this offence. However, it is open to you to avoid liability under this charge to prove that you took all reasonable care in the circumstances. In making this determination, you would need to show that your conduct is what the average careful driver would have done in similar circumstances. Contact our office to meet with us, so that you can share the details of what lead to your charge and explore what defences may have available to you to fight this charge. We will request the Disclosure package from the Crown Attorney to find out more details about your situation, including any police officer notes and witness statements, to assist you in this process.

ISSUING A CHARGE

A careless driving charge may be issued under Part I or Part III of the Provincial Offences Act. Under Part I, the police officer will issue you a ticket whereas under Part III, you will be issued a Summons, requiring your attendance in court. In the latter case, the penalty is more severe... Even if you have been issued a ticket under Part I (the fine will be printed on the ticket), you still have the option of going to court to fight the ticket/charge.

SENTENCING

The penalties for a conviction of careless driving are severe. You could have to pay a fine of between $400 to $2,000 dollars, go to jail or be under house arrest for a period of up to six months, have your licence suspended for up to two years, or some combination of the above sentencing options. Additionally, there is a victim fine surcharge based on the amount of your fine and which is stated in the Regulations of the Provincial Offences Act. For example, if your fine is $400, then the surcharge is an additional $85.

If you are convicted of this offence (paying the ticket fine is still a conviction), you will receive 6 demerit points on your driving record and you will likely face higher premiums for your auto insurance or your insurance company may even cancel your existing policy.. If you are a novice driver (ex. hold a G1 or G2 licence) this means that your driver’s licence may be suspended as you will likely be scheduled for an interview with the Ministry of Transportation to discuss your driving record and you will have to explain why your licence should not be suspended. You will have to pay an additional $50.00 for this interview and failure to do so will result in your licence being cancelled. If you have a full licence (ex. G licence) with no demerit points, then a conviction of careless driving will cause you to receive a warning letter. However, if this conviction will cause you have between 9 to 14 demerit points, then you will face the same consequences as a novice driver. A fully licenced driver who has accumulated over 15 demerit points will automatically have their licence suspended for 30 days and will need to surrender their licence for that time period or risk losing their licence for up to two years.

If you have been charged with the offence of careless driving, call our office as soon as possible to see how we can best assist you.