GOVERNMENT OF CANADA OVERHAULS TEMPORARY FOREIGN WORKER PROGRAM
On June 20, 2014, the Honourable Jason Kenney, Minister of Employment and Social Development (ESDC), and Chris Alexander, Minister of Citizenship and Immigration, announced a comprehensive overhaul of the Temporary Foreign Worker Program (TFWP) and the creation of new International Mobility Programs (IMPs).
The new IMPs will incorporate those streams in which foreign nationals are not subject to a Labour Market Impact Assessment (LMIA), and whose primary objective is to advance Canada’s broad economic and cultural national interest, rather than filling particular jobs. The LMIA is a labor market verification process whereby ESDC assesses an offer of employment to ensure that the employment of a foreign worker will not have a negative impact on the Canadian labor market. Employers will be required to provide a variety of information about the position for which they want to hire a foreign worker, including the number of Canadians who applied for the position, the number of Canadians who were interviewed, and detailed explanations for why the Canadian workers considered were not hired.
The goal is to ensure the TFWP is only used as intended, as a last and limited resort to fill acute, temporary labour shortages when qualified Canadians are not available.
If you currently participate in the TFWP, or are intending to, find out more detailed information in the official federal government news release and Background Documents.
NEW EMPLOYMENT RULES FOR INTERNATIONAL STUDENTS STUDYING IN CANADA IN EFFECT AS OF JUNE 1, 2014
On June 1, 2014, amendments to the Immigration and Refugee Protection Regulations (Regulation) modifying working rights for foreign nationals, under the International Student Program (ISP), came into force.
Effective June 1, 2014, permits for off-campus work will no longer be required, nor will international students be expected to study full-time for a period of six months prior to seeking such employment.
The new rules governing off-campus work require that international students hold a valid study permit similarly to before, but moving forward, these study permits will not be obtained as easily as in the past. Previously, study permits were issued to students attending any type of educational institution, whether or not accredited or regulated. Such permits will now only be issued to students enrolled at a “designated learning” institution.
Consult the Government of Canada’s website for additional details.
At the time of this release, all provincial and territorial jurisdictions have tabled their budgets. The CPA has prepared a Budget Report for each jurisdiction, all of which are available at the CPA’s website. This section of the CPA website is updated with new budget information as it becomes available.
NEW NOVA SCOTIA HOLIDAY TO BE KNOWN AS HERITAGE DAY
The Nova Scotia government recently announced that the new statutory holiday to be celebrated on the 3rd Monday of February every year will be known as Heritage Day.
The first Heritage Day celebration will take place on Monday February 16, 2015.
Nova Scotia now joins the jurisdictions of Alberta, British Columbia, Manitoba, Ontario, Prince Edward Island and Saskatchewan, to celebrate a holiday in the month of February.
Access the official News Release for additional information.
ONTARIO GOVERNMENT PASSES PROVINCIAL BUDGET BILL ON JULY 24 2014
The Ontario Government gave Royal Assent to Bill 14, Building Opportunity and Securing Our Future Act (Budget Measures), 2014which puts into effect the provisions presented on July 14, 2014.
Some of the payroll related measures included:
§ Retroactive tax rate changes for individuals whose incomes are in excess of $150,000
§ The introduction of an Ontario Retirement Pension Plan (ORPP) that would come into effect in 2017
§ The introduction of Pooled Registered Pension Plans (PRPP)
§ The proposal to amend Ontario’s Insurance Act which would require benefits from a long-term disability (LTD) plan to be insured
The Budget also discusses initiatives in other areas that may affect payroll including job training, hiring employees with disabilities and public sector pension plans.
For additional information, consult the CPA’s Ontario Budget Report. The CPA has also prepared a document with the top questions and answers regarding the retroactive tax rate changes.
The Canada Revenue Agency (CRA) has published an updated edition of the T4127, Payroll Deductions Formulas for Computer Programs to enable employers to implement the revised rates in their system effective September 1, 2014.
The September 2014 version of the Payroll Deductions Online Calculator (PDOC) that includes the Ontario tax changes is now available.
The CPA has forwarded a Legislative Briefing: Ontario Personal Tax Changes to its members.
ONTARIO GOVERNMENT PASSES LEGISLATION TO INTRODUCE THREE NEW LEAVES
On April 29, 2014, Bill 21, the Employment Standards Amendments Act (Leaves to Help Families), 2014, passed its third reading with all-party support in the Ontario legislature. The legislation has received Royal Assent and will come into effect on October 29, 2014.
The new legislative measures build on the existing Family Medical Leave by creating three new job-protected leaves:
§ Family Caregiver Leave: up to eight weeks of unpaid, job-protected leave for employees to provide care or support to a family member with a serious medical condition.
§ Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
§ Crime-Related Child Death or Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child who has died as a result of a crime.
A doctor’s note would be required to qualify for Family Caregiver Leave and Critically Ill Child Care Leave.
Access more information at the websites below:
ONTARIO INTRODUCES EMPLOYMENT LEGISLATION IMPACTING SEVERAL AREAS
On July 16, 2014, the Ontario government introduced Bill 18 Stronger Workplaces for a Stronger Economy Act, 2014. The legislation, if passed will impact several areas within the various labor and employment laws.
Some of the proposed changes include:
§ The elimination of the $10,000 cap on the recovery of unpaid wages by employees through the Ministry of Labour claim process under the Employment Standards Act, 2000.
§ Increasing the limitation period to two years for employees to recover unpaid wages through the Ministry of Labour claim process under the Employment Standards Act, 2000. The current limitation period is six months or one year depending on the type of claim.
§ Requiring employers to provide each of their employees with a copy of the most recent poster (including translations) published by the Ministry of Labour that provides information about the Employment Standards Act, 2000.
§ Making temporary help agencies and their clients jointly and severally liable for unpaid regular wages and unpaid overtime pay.
§ Requiring the Workplace Safety and Insurance Board to assign workplace injury and accident costs to temporary help agency clients when an employee is injured while performing work for the agency’s client.
§ Expanding employment protections for foreign nationals who are in Ontario under an immigration or foreign temporary employee program. The protections include a prohibition on charging a recruiter fee or taking possession of the foreign national’s property, such as their passport or work permit.
§ Tying future minimum wage increases to the Consumer Price Index. The new minimum wage will be announced by April 1 of each year and will come into effect on October 1 of that same year.
Access Bill 18 Stronger Workplaces for a Stronger Economy Act, 2014 for additional details.
The CPA will continue to monitor the progress of these new legislative measures and advise employers accordingly.
NEW ONTARIO LAW EXTENDS PENSION DEATH BENEFITS TO COMMON LAW SPOUSES
With Ontario’s budget having received Royal Assent on July 24, 2014, certain amendments to the Pension Benefits Act (PBA), known as the Carrigan amendments, have become law.
Changes to Section 48 of the Pension Benefits Act modified within Bill 14, Building Opportunity and Securing Our Future Act (Budget Measures), 2014 clarify that in circumstances where a pension plan member is legally married to a spouse from whom they are separated, is living with a new spouse in a common law conjugal relationship, and dies prior to retirement, the common law spouse will be entitled to the pre-retirement death benefit.
Minimum wage update
The following table includes the minimum wages currently in effect in all jurisdictions as well as any rate changes announced at the time of writing.
(Canada Labour Code, Part III)Aligned with provincial/territorial minimum wage in each jurisdictionDecember 1996Alberta§ General$9.95
$10.20September 1, 2013
September 1, 2014§ Liquor server$9.05
$9.20September 1, 2011
September 1, 2014British Columbia§ General§ Liquor servers$10.25
$9.00 May 1, 2012
May 1, 2012Manitoba$10.45
$10.70October 1, 2013
October 1, 2014New Brunswick*$10.00April 1, 2012Newfoundland and Labrador$10.00
$10.25July 1, 2010
October 1, 2014Northwest Territories$10.00April 1, 2011Nova Scotia§ Experienced workers§ Inexperienced workers$10.40
$9.90 April 1, 2014
April 1, 2014Nunavut$11.00January 1, 2011Ontario§ General § Students under 18 working 28 hours/week or less§ Serving alcohol on licensed property $11.00
$9.55 June 1, 2014
June 1, 2014
June 1, 2014Prince Edward Island$10.20
$10.35June 1, 2014
October 1, 2014Quebec§ General§ Employees receiving tips$10.35
$8.90 May 1, 2014
May 1, 2014Saskatchewan$10.00
$10.20December 1, 2012
October 1, 2014Yukon $10.72April 1, 2014
An inexperienced employee is an employee who has not been employed by their current employer or other employers to do their current job for three calendar months.NEW PCP CERTIFICATION EXPERIENCE REQUIREMENT
Will increase each year based on the Consumer Price Index (CPI).
*There are special minimum wage rates for certain categories of employees in government construction work, and counsellors and program staff at residential summer camps.
The Canadian Payroll Association (CPA) is implementing a one-year Payroll Experience (PE) requirement, effective January 1, 2015, for all Payroll Compliance Practitioner (PCP) candidates. This requirement will enhance the quality of PCP graduates and demonstrate to employers that a PCP certification holder has both the education and experience competencies required to keep organizations compliant.
As a payroll professional, keeping up with federal and provincial requirements is key. The following article by HRinfodesk concerns a case in Ontario. The conclusions from this case involve the legal implications of not including termination compensation provisions in employment contracts. This may have implications for employment contracts in other provinces.Limiting termination compensation
By Adam Gorley, Editor, HRinfodesk, published by First Reference, August 2014
In recent termination cases, Ontario's courts have often inferred missing termination notice or severance pay provisions into employment contracts, usually to employers' benefit. But in Paquette v. Quadraspec Inc., 2014 ONCS 2431 (available in French only), the Superior Court has released a decision that suggests a stricter approach. Justice Paul Kane found that where an employer has drafted an employment contract that doesn't comply with the Employment Standards Act (ESA)—either by omission or error—it is inappropriate to assume that the employer intended otherwise.
Facts of the case and decision
The employee, Alain Paquette, had worked for Quadraspec Inc. or its predecessors since 1983. In 1998, the employer made Paquette director general of the company's Oakville operations, under a new contract that was in effect until 2011, when he was terminated without cause or notice. Quadraspec paid Paquette six months of salary in lieu of notice, plus unpaid bonus amounts, in accordance with the contract. The contract expressly limited claims for other unpaid compensation such as benefits or severance to the notice period. Paquette complained that the termination clause of the employment contract was not valid since it prevented him from making claims for these unpaid amounts, contrary to the ESA.
It is well-established that an employer may not contract out of the minimum standards set in the Act, and by attempting to do so, that employer will nullify any offending contractual clause. On termination notice, the ESA states:
Requirements during notice period (section 60.1)
During a notice period, the employer:
(a) Shall not reduce the employee's wage rate or alter any other term or condition of employment;
(b) Shall in each week pay the employee the wages the employee is entitled to receive, which in no case shall be less than his or her regular wages for a regular work week; and
(c) Shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee's benefits under the plan until the end of the notice period.
Pay instead of notice (section 61.1)
An employer may terminate the employment of an employee without notice or with less notice than is required if the employer:
(a) Pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and
(b) Continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive.
Quadraspec admitted that the clause excluded benefits to which Paquette was entitled, but argued that it understood it had an obligation to pay these benefits to Paquette regardless of the wording of the contract.
However, Justice Kane found that when drafting the contract, the employer intentionally chose a wording that violated the ESA, despite simple valid alternatives. Quadraspec clearly put substantial effort into the drafting of the detailed 15-page employment contract, and as a result, it didn't make sense for the court to infer terms into the ambiguous termination notice clause.
The court further noted that the offending clause looked like an attempt to avoid or limit the employer's obligation to maintain Paquette's benefits during the notice period, placing the onus (and expense) on the employee to challenge the ambiguous provision in court. Justice Kane stated, “Courts shouldn't be assisting employers with such a purpose.” As a result, the court found the termination clause was null and void.
Justice Kane made another important decision in the case. The ESA states that an employer must pay severance to employees of five years or more if its total payroll is greater than $2.5 million. Quadraspec argued that this clause applies only to payroll in Ontario. Since Quadraspec's main operations are in Quebec, and its Ontario payroll was not above the threshold, this interpretation would have meant the employer didn't have to pay severance to Paquette. The court disagreed. It is clear from the reading of the Employment Standards Act and various other relevant statutes that Ontario's legislature did not intend to limit the severance clause to employers' payroll in Ontario. There is simply no evidence that this was the intention.
The Act states:
Payroll (section 64.2)
An employer shall be considered to have a payroll of $2.5 million or more if:
(a) The total wages earned by all of the employer's employees in the four weeks that ended with the last day of the last pay period completed prior to the severance of an employee's employment, when multiplied by 13, was $2.5 million or more; or
(b) The total wages earned by all of the employer's employees in the last or second-last fiscal year of the employer prior to the severance of an employee's employment was $2.5 million or more.
Since Quadraspec's total payroll was more than $2.5 million, and Paquette had worked for the company for more than five years, the court found the employer did owe the employee severance.
This case serves as another clear reminder that it is crucial to draft compliant employment contracts.
Any questions or comments, please communicate with Yosie Saint-Cyr, Managing Editor, HRinfodesk.com at [email protected]
This article is published on HRinfodesk---an online publication and database of payroll and employment law news, compliance and case commentaries for every jurisdiction in Canada, published by First Reference.
These articles are made available to give you general information and understanding of the law, not to provide legal advice about specific situations or problems. These articles also offer general comments on legal developments of concern to businesses. There is no lawyer-client relationship between you and the author or publisher. Every effort has been made to ensure the accuracy and timeliness of this information. These publications should NOT be relied upon as legal advice or opinions. The reader should always obtain legal advice from a qualified lawyer or other qualified professional, which will be responsive to the case or circumstance of the individual.
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