Edmonton Employment Law

One of the common issues I've been seeing pop up - I've dealt with it a number of times in recent days - is employers asking employees to sign new employment contracts with reduced compensation and/or hours. There are a bunch of different variations of this: Some expressly threaten a full layoff if you don't sign; some impliedly threaten it.  Some are reducing compensation for 'furloughed' employees to just equal the amount of the subsidy available from CEWS; some are reducing compensation for actively employed workers. But let's talk for a minute about these in general terms. Why Do Employers Want Employees to Sign? Earlier in the pandemic, I posted a commentary that employers may be liable for constructive dismissal if they send their workers home without pay .  There's really an open question as whether or not some employers might get relief against that doctrine because of the extraordinary nature of the pandemic (we call it 'frustration of ...

In the wake of the COVID-19 pandemic, there are going to be a number of areas of our infrastructure that will undergo close scrutiny.  One of the casualties of the pandemic will be our EI framework. EI has never been perfect.  Indeed, for several months, I've had a draft blog entry on the go where I argue that EI and CPP contributions are regressive taxes.  (In a nutshell, the point is this:  On your first 50-something thousand dollars of income, you and your employer both pay a pretty penny into EI and CPP.  After that, you don't.  Which means that, within certain income classes - that vary from Province to Province - higher earners get to keep a higher proportion of their gross income.) And that whole "employee versus independent contractor" perennial controversy?  In Canada, the most common measurable benefit to an employer (/payor) under such an arrangement is the avoidance of EI and CPP contributions (though the CPP portion generally just gets...

In the aftermath of any crisis, it's always prudent for us as a society to look back and see what we could have done better.  And while there are specific individual lessons to be learned about preparedness for a pandemic, I'll leave most of the broad issues pertaining to public health preparedness to policy experts in that field. But what I want to address here is our own  response to a pending crisis.  And I'm addressing it now because I want people to pay attention to how this has unfolded up to now, and how it unfolds moving forward. Of course, we're not out of the woods yet.  We're barely into the woods.  Most of the disruption to our lives has to do with the response  to the pandemic - cancellation of sports leagues, of public events, closure of public venues, widespread quarantine recommendations, TP shortages... Make no mistake: These reactions are warranted.  Covid-19, if not contained, will be one of the biggest crises ever faced by our...

Last week, I posted a guide to pandemic preparedness for employers . But as the situation continues to deteriorate, and increasing numbers of businesses shut down due to pandemic-related declines in business, or to comply with public health guidelines relating to social distancing, it's worth further discussion of how these businesses should address the very real practical problems that will result from closure. The Legal Stuff Most employers in non-union contexts have no contractual right to impose unpaid layoffs.  That means that, in many circumstances, imposing an unpaid layoff will be a constructive dismissal. Last week, we talked about the implications of this doctrine on employer-imposed quarantines, and how that's a really  new kind of question.  This framework will be better established, with the possible exception of circumstances where legislative or executive government action mandated  business closure: For a restaurant, for instance,...

With the WHO announcing a pandemic, and the Federal government announcing that 30-70% of Canadians are likely to get Covid-19, we're into uncharted territory in workplace relationships.  Employers aren't sure how to protect their employees, their customers, their brands, and their bottom lines. Below, I will address some of the common employer questions to deal with the pandemic, in general terms.  Three things to bear in mind: Firstly, courts and tribunals have never before wrestled with the question of employer rights and obligations during a pandemic, so, while my analysis is based on a reasonable extrapolation of existing common law and statutory doctrines, there's a degree of uncertainty here. Secondly, employment relationships can vary substantially.  Certain rules and doctrines apply differently, or not at all, in different sectors, and collective agreements (for unionized employees) change a great deal of the analysis.  The below discussion deals primar...

There's a recent decision out of the British Columbia Court of Appeal, Quach v. Mitrux Services , which is a bit of a game-changer on the issue of mitigation in fixed-term employment contracts. But before I get into Quach , a bit of background. Mitigation in Employment Contexts The concept of 'mitigation' is a foundational doctrine of damages.  As a general proposition, when somebody breaches a contract, the non-breaching party is entitled to recover for losses flowing from that breach; however, that entitlement comes with a duty to mitigate by taking reasonable steps to manage or reduce your own loss. The principles were applied in the employment law context in 1976 in the Supreme Court decision of Red Deer College v. Michaels  - one of the few seminal employment law cases to come out of Alberta.  At the risk of oversimplifying...when an employee entitled to reasonable notice of termination is dismissed without that reasonable notice, that employee needs to take ...

The general rule of litigation costs in Canada is that the 'unsuccessful' party is presumptively required to contribute to the costs of the 'successful' party. However, in complex litigation, often a party might be successful on some issues, and unsuccessful in others.  In cases where the result is 'divided', there is frequently a dispute as to the relative importance and complexity (and cost) of the different issues. Still, the truest measure of which party was 'successful' has always been with reference to settlement positions.  While it is improper to advise the court of settlement positions prior to the court determining the merits, once the court has made its decision, it is normal and appropriate for the parties to tell the court what settlement positions they took before trial. A recent decision of the Alberta Court of Queen's Bench reinforces the need for settlement offers.  In Richmond v. Panther Industries , a long-service salesperson...