Edmonton Employment Law

Since governments aren't likely to actually mandate the vaccine (more commentary on that issue forthcoming), the next question is whether or not someone might be required  to get the vaccine in order to go to work. As a preliminary note, I'm not talking about unionized workplaces; different considerations will apply there. This discussion centers on non-unionized workplaces. There are a range of considerations to look at - the impact of various statutory regimes, context-dependent factors, etc. - but the biggest and most difficult question here will be the 'general' case: In a workplace with no exceptional or extraordinary relevant considerations, is it within the employer's contractual rights to require employees to vaccinate?  I'll come to that last. The Easier Question: What If I Can't Vaccinate? There are already cases of people experiencing allergic reactions to the Pfizer vaccine, and so the emerging recommendation is that people with histories of drug...

The confirmation hearing of Judge Coney-Barrett has triggered a firestorm of discussion on my Twitter feed about the meaning of the term 'originalism'. My own Twitter feed is more of a counter-narrative - people responding to claims that Canada doesn't subscribe to the American originalist doctrine, essentially arguing that Canada's "living tree" principle is not in opposition to an originalist approach.  (Naming names, I've seen posts to more-or-less this effect by Emmett Macfarlane , Leonid Sirota , Asher Honickman , and Mark Mancini - with some variation between their positions. I've linked relevant Tweets, and I'm genuinely trying to be fair to everyone's position, but if anyone feels I'm misrepresenting your positions or using any straw man arguments here, I invite clarification.) These folks largely have stronger constitutional law credentials than I do, and I don't take issue with the core point being made (particularly by Honic...

A year and a day ago, the Supreme Court of Canada heard the appeal in Matthews v. Ocean Nutrition , where Mr. Matthews sought his entitlements under an LTIP, which would have come due during a notional reasonable notice period, notwithstanding that it was a term of the LTIP that he would only receive the benefit if he was actively employed when it vested (the 'forfeiture clause'). The Nova Scotia Court of Appeal, following an Alberta precedent, Styles , had declined to award Mr. Matthews that benefit. In a striking coincidence, a couple weeks before the Supreme Court granted leave to appeal (January 2019), I submitted a paper to the Alberta Law Review setting out a first principles analysis of that very question. My paper leaned heavily on certain interprovincial inconsistencies in the law and a lack of clarity from the Supreme Court on the nature of wrongful dismissal damages, and my initial draft included a footnoted prediction that the Supreme Court likely would and should ...

With schools reopening, there are already lots of kids being isolated on a 'close contact' basis - leaving parents and others, and their employers, in a situation of wondering whether the contacts of those children should also be isolating. But the financial concerns of self-isolation, for both employers and employees, are serious and legitimate. Employees don't want to stay home from work if it means that they don't get paid; employers are legitimately reluctant to pay employees who are unable to perform work. Before we get into the nuts and bolts here, a few preliminary notes: There's no case law on any of this. I can extrapolate reasonable conclusions based on existing principles, but COVID may well change how these principles are interpreted and applied, so it's hard to say anything with confidence. The below assumes that no sick benefits or short-term disability benefits are engaged. There may be scenarios where that changes the analysis, but there's go...

This pound of flesh which I demand of him is dearly bought; 'tis mine and I will have it. If you deny me, fie upon your law: There is no force in the decrees of Venice. -Merchant of Venice, Act IV, Scene 1. Employers, concerned about having to provide potentially prohibitive 'pay in lieu of reasonable notice' when dismissing employees, often require employees to sign contracts limiting their entitlements on termination. There are plenty of ways that employees can challenge these clauses following termination: A new employment contract for an existing relationship might be said to lack 'fresh consideration'; an old employment contract for an evolved relationship might be said to have lost its 'substratum'; a clause may be void for a conflict with the applicable employment standards legislation; etc. In the case of Waksdale v. Swegon North America Inc. , Ontario's Court of Appeal recently dramatically expanded the category of contracts void for con...

This week, Professor Doorey published an article I wrote about Alberta Bill 32 on his Canadian Law of Work Forum.  I'm not going to reproduce it here - just click the link:   http://lawofwork.ca/bill32-charter/ Consider this post a bit of a meta-narrative, where I'll prattle on about some other perspectives not fully addressed in that article. Bill 32 which passed on Tuesday and received royal assent yesterday, is attracting national attention, particularly because of its treatment of political speech. It's getting attention for other reasons, too - my social media feeds have been filled with CUPE ads drawing attention to its overtime reform, and there's concern about limitations to secondary picketing - but in most of these ways it's more or less undoing changes by the Notley government, if perhaps going a bit further (not to say that some of these aren't constitutionally questionable in their own right).  The 'political activity' issue is probably Bill...