The Latest in Employment Law: A Stewart McKelvey Newsletter – 2017 Atlantic Canada legislative update
Josie Marks and Lara Greenough
As 2017 comes to a close, please find below a summary of significant 2017 legislative amendments in each of the Atlantic Canadian provinces as well as federally, along with a review of legislative trends in Atlantic Canada.
1. New Brunswick
Human Rights Act
Amendments to the NB Human Rights Act which took effect on May 5, 2017 include:
- the addition of family status and gender identity or expression as protected grounds;
- the grant of authority to the Commission to dismiss complaints if the complainant has declined a “fair and reasonable” settlement offer; and
- the protection against discrimination in employment now protects against discrimination by a “person” rather than simply by an “employer”.
The scope and effect of this latter change remains to be seen. Similar amendments to BC legislation are presently before the Supreme Court of Canada in Schrenk v. British Columbia.
In Schrenk, two employees, S and SM, worked on the same construction job site but for separate employers. They had no employment relationship with each other and one did not supervise the other. After repeated discriminatory remarks by S, SM filed a human rights complaint alleging discrimination in employment by S and S’s employer. The Human Rights Tribunal and British Columbia Supreme Court both found that, because the statute referred to “person” rather than “employer”, S could proceed with his complaint even though he was not in an employment relationship with either of the respondents. The British Columbia Court of Appeal reversed, finding that the lack of employment relationship between the complainant and respondents was such that the alleged misconduct could not constitute “discrimination in employment”. The case was argued before the Supreme Court of Canada (SCC) in March of 2017, but no decision has been issued.
This decision will be instructive for interpretation of the scope of the expanded language now existing in New Brunswick.
Bill 4 – An Act to Amend the Industrial Relations Act
On October 25, 2017, the New Brunswick government introduced amendments to the Industrial Relations Act which include first contract arbitration. Historically, arbitration respecting the negotiation of collective agreements in New Brunswick has only be available for the renegotiation of existing contracts. This proposed legislation would give both sides the ability to request arbitration where they are unable to negotiate a first collective agreement on their own.
All other Canadian provinces except New Brunswick and Prince Edward Island provide first contract arbitration. PEI has passed similar legislation, but it has not yet been proclaimed into force.
2. Nova Scotia
Labour Standards Code
The following amendments to the Labour Standards Code came into force on January 1, 2017:
- Record keeping: Employers are no longer required to keep a record of employees’ sex, but are required to keep records of each employee’s social insurance number, gross earnings, general holiday pay and leaves of absence (section 15).
- Electronic pay statements: Employers who issue electronic pay statements must provide employees with confidential access to same and a means to make a paper copy (section 15A).
Occupational Health and Safety Act
In June of 2017, the following amendments to the Occupational Health and Safety Act took effect.
- If a person has repeatedly contravened the Act or regulations or failed to comply with an order and there is a risk of serious injury or death, the Director of Occupational Health and Safety now has the power to order disclosure of workplace details (section 52A) and officers now have the power to extend work stoppage orders to the employer’s other workplaces (section 55);
- Shorter maximum time frames to report workplace accidents (section 63):
• 24 hours for a fire, flood or accident that results in injuries (unless
sufficiently minor that the employee is treated with first aid and
returns to work the following day);
• 24 hours for an accidental explosion, a structural failure or building
collapse, a major release of a hazardous substance, or a fall where
fall protection was required; and
• immediate notification in the event of a fatality.
- Granting of power to the Director to seek a Court injunction to require the person to comply with an order or restrain a person from continuing to contravene the Act or from carrying on an industry or activity for a specific time (section 75A).
3. Prince Edward Island
Workers Compensation Act
On December 31, 2016 a change in the regulations under the Workers Compensation Act removed the occupation of “farming” from the list of workers and industries excluded from the application of the Act. Accordingly, since January 1, 2017 the Act and its regulations now apply to farm workers and the farming industry.
4. Newfoundland and Labrador
With the exception of those discussed in the legislative trends below, there were no significant legislative amendments in Newfoundland this year.
Changes to Leave Benefits for Federal Employees
Changes to benefits under the Federal Employment Insurance Act and are set to come into force on December 3, 2017:
- Maternity benefits can now be paid as early as 12 weeks before an expected due date (extended from the prior limit of 8 weeks).
- Parents now have more flexibility with regard to the length of their leave by choosing between receiving parental benefits at (1) the traditional rate of 55% of weekly insurable earning for 35 weeks; or (2) a new rate of 33% for up to 61 weeks.
- An adult caregiver benefit has been created to allow family members care for a critically ill adult for up to 15 weeks in a year.
- Benefits to care for a critically ill child may now be paid to family members, rather than only parents.
The pre-existing rules remain in force for any benefit periods which began prior to December 3, 2017. Similar changes to the leave provisions of the Canada Labour Code will also come into force on this date.
Proposed Changes to Canada Labour Code Respecting Harassment and Violence
On November 7, 2017, the Federal Government put forward Bill C-65 which proposes to amend the Canada Labour Code to strengthen protections against harassment and violence, including sexual harassment and sexual violence, in the work place. Some proposed changes include:
- Employers would have an obligation to investigate, record and report all occurrences of harassment or violence known to the employer, in accordance with the regulations.
- Employers would be required take prescribed measures to prevent and protect against harassment and violence in the work place, respond to such occurrences and offer support to affected employees.
- The Minister would be required to investigate a complaint relating to an occurrence of harassment or violence where the supervisor and employee failed to resolve the complaint between themselves, unless the Minister believed the complaint had already been adequately dealt with, or the matter was trivial, frivolous or vexatious.
- Employers would be restricted in their ability under the Code to provide health and safety representatives with information likely to reveal the identity of a person involved in an occurrence of harassment or violence in the workplace, without that person’s consent.
LEGISLATIVE TRENDS IN ATLANTIC CANADA
Athletes and Employment Standards
Each of the Maritime Provinces have been implementing or considering changes to their employment standards legislation regarding athletes to exempt student, amateur and professional athletes from certain protections. Those in favour of the amendments argue that sports teams cannot afford to operate if they must pay athletes a minimum wage or pay them for practice time or travel time. The amendments appear aimed at striking a balance between granting some legislative protections to athletes, but not in relation to minimum wage, hours of work, vacations or termination.
Nova Scotia was the first to make such changes. In the summer of 2016, the regulations under the Labour Standards Code were amended so that provisions of the Code relating to minimum wage, vacation pay, paid holidays, minimum wages, hours of work and termination do not apply to athletes.
New Brunswick made similar amendments to the regulations under the Employment Standards Act this past summer.
In PEI, there is currently a Bill before the Legislative Assembly such that the Employment Standards Act would only apply to athletes in respect of pay and protection of pay.
Presumptions in favour of emergency workers
Three of the four Atlantic Provinces have amended their workers compensation legislation to make it easier for emergency workers to access workers compensation benefits for certain types of diagnoses.
In Newfoundland, amendments to the Workplace Health, Safety and Compensation Act on January 1, 2017 created a presumption that, if a firefighter becomes disabled or dies as a result of a listed disease (including brain cancer, bladder cancer, colorectal cancer, esophageal cancer, leukemia, lung cancer, kidney cancer, non-Hodgkin lymphoma, testicular cancer, ureter cancer and breast cancer), that the disease resulted from the firefighter’s employment.
In New Brunswick, amendments to the Workers’ Compensation Act in June 28, 2016 created a presumption that a firefighter, paramedic or police officer diagnosed with PTSD suffers same as a result of his or her employment.
In Nova Scotia, Bill No. 7 (2017) is currently before the Legislature. If passed, the Workers’ Compensation Act will be amended so that “front-line” or “emergency-response” workers (which includes continuing-care assistants, correctional officers, emergency-response dispatchers, firefighters, nurses, paramedics and police officers) diagnosed with PTSD will be presumed to have suffered PTSD through their employment.
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