Brian Shell quoted in Law Times Article on Ontario's Changing Workplaces Review

by Administrator8. June 2015 12:57

On May 14, 2015 the Ontario government announced that it had launched public consultations in connection with its Changing Workplaces Review.  According to the Ontario government, the consultations will consider how the Labour Relations Act, 1995 and Employment Standards Act, 2000 could be amended to best protect workers while supporting businesses in our changing economy.

Brian Shell was quoted in a May 25, 2015 Law Times article on this subject written by Law Times reporter Ian Harvey.  Click here to download the complete article.

What Employees Need to Know About the Stronger Workplaces for a Stronger Economy Act ("Bill 18")

by Administrator11. March 2015 11:06

On November 20, 2014 the Stronger Workplaces for a Stronger Economy Act, 2014 (“Bill 18”) received royal assent.  Bill 18 includes many significant amendments to the Employment Standards Act, 2000 (“ESA”). This new law affects all employees working under Ontario's jurisdiction.

Minimum Wage Increases

The most significant amendments in Bill 18 concern changes to the procedure for increasing the minimum wage.  Before the passage of Bill 18, minimum wage increases were implemented entirely on an ad-hoc basis.  The process led to irregular, uncertain and politicized increases to the minimum wage; affected employees could not rely upon increases.

With the passage of Bill 18, and commencing this year, the minimum wage will undergo annual adjustments based on the Consumer Price Index for Ontario as published by Statistics Canada.  The key dates for employees to remember are April 1 and October 1:

  • By April 1 of each year the Minister of Labour is required to publish the revised minimum wage rate on a Government of Ontario website;
  • On October 1 of each year the revised minimum wage rate published by April 1 will go into effect.

     Recovering Unpaid Wages

Employees who believe that their employer has not complied with the ESA can file a claim with the Ministry of Labour (as opposed to going to court) and have their claim adjudicated by an Employment Standards Officer (as opposed to a judge).  The administrative claims system established by the ESA is intended to be cheaper, faster and easier than the courts (although it does not always succeed on these fronts).

Before the passage of Bill 18, the claims system was subject to two significant restrictions that limited its usefulness to employees.  First, there was a $10,000 cap on the amount of unpaid wages an employee could recover.  If unpaid wages exceeded that amount, an employee was required to either abandon the amount of the claim in excess of $10,000 or file a claim in court.  Second, the claims system restricted the period of time during which an employee could claim unpaid wages to 6 months before the wages became due (which could be extended to 1 year if certain conditions were met).  An employee who became aware that an employer was improperly withholding wages after the fact, was restricted to claiming wages to the 6-month period before the unpaid wages were discovered.

With the passage of Bill 18, for all wages that are owed after February 20, 2015, the $10,000 cap is eliminated. The 6 month recovery period has been increased to 2 years.  There is now no limit to the amount an Employment Standards Officer can order for unpaid wages. 

These amendments make the Ministry of Labour claims process a much more viable alternative to the court system than was previously the case.  An employee who is owed unpaid wages should seriously consider and should seek legal advice now whether the Ministry of Labour claims system is the most effective process to initiate to resolve their dispute.

ESA Poster

Under Part II of the ESA, the Minister of Labour is required to prepare and publish a poster that informs employees of their rights under the ESA. Employers are required to post the poster in their workplaces.  The most recent version of the ESA Poster, published in June 2014, can be found and printed at the website of the Ministry of Labour.

With the passage of Bill 18 and beginning May 20, 2015, in addition to posting the ESA poster in the workplace, employers are required to provide new and existing employees with a copy of the ESA poster.  New employees must be provided with a copy of the poster within 30 days of becoming an employee and existing employees must be provided a copy within thirty days of May 20, 2015.

The three changes discussed here are only a few of the amendment introduced by Bill 18.  In addition to further amendments to the ESA, Bill 18 also amended the Employment Protection for Foreign Nationals Act (Live-In Caregivers and Others), 2009, the Labour Relations Act, the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997.

To view all of the changes introduced by Bill 18, see the Stronger Workplaces for a Stronger Economy Act, 2014 here.

As they say, very late is better than not at all...

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Olivia Chow for Toronto

by Administrator21. August 2014 10:47

In this blog, I am making a political statement of support for Olivia Chow. This is because I think lawyers, just like producers of any and all consumer or other products or services, have values and opinions and that we are morally compelled to engage in a transparent way with their clients and with the public. 

The other night I was surfing television shows and came across the non-documentary, basically fictionalized but historically somewhat accurate, I presume, CBC's production of "Jack", a sort of truncated personal and political career biography of Jack Layton.

The show was produced by Laszlo Barna, a very talented Canadian film maker who I met about twenty years ago when he made the film "Moving Mountains" with the assistance and co-operation of the United Steelworkers. That film was a documentary about women working on huge earth moving equipment at a major USW coal operation in eastern British Columbia. The focus was on how the world of work was beginning to change for women, even in the mining industry. That was a film about the process of emerging equality between men and woman, a process still underway, to be sure.  

Anyway, back to "Jack."

One of the several very moving and endearing aspects of the story about the untimely and tragic death of Jack Layton, for all Canadians, was the portrayal of his relationship with his life partner and political ally and colleague, former Toronto City Councillor and former NDP Toronto area MP and now Toronto mayoral candidate, Olivia Chow.

I have followed Olivia's political career from the time she was a school board trustee and more closely when she became a Toronto City Councillor. I live not too far from her Ward. I have visited the Chinese restaurants on Spadina and in Markham regularly. I have been cooking and tasting hot and sour soup from the time I was an undergraduate. I have lived in Toronto from the time I entered the University of Toronto's Faculty of Law in 1975. I have practised law from my Toronto base for almost thirty-five years. I am proud to live in Toronto, despite recent troubling municipal embarrassments. Toronto is my home.  

I am keenly interested in and a big supporter of multicultural Toronto (and Canada) and the developing sense of toleration and sensitivity that most Torontonians show to each other, whatever our ethnic or cultural or religious backgrounds. For me, without knowing too much about Olivia's personal history, Olivia served as an example or reflection of a new kind of western society. Her instinctive progressive approach to problem-solving, her selfless commitment to public service, values and her interests in urban challenges - multicultural education, access to health care, urban poverty, mass transit transportation -  these have made her one of the most attractive and interesting Toronto and Canadian public figures of my generation. The time has come for differentiations between us that form the core for lingering discrimination - such as gender and ethnicity - to be deposited securely in the dustbins of our memory. Control/Alt/Delete.

Olivia gives Torontonians an opportunity to make a declaration to Canadians and to the world about who we are and, collectively, what we want to become.

So, when the quagmire of the Rob Ford spectacle was broken by Olivia's announcement that she would run for the Toronto Mayor's job, I thought there was some hope on the horizon that core progressive values could return to the conversation that Canadians must reignite with each other. It may be that Torontonians can once again be proud of our public institutions and begin to focus on creative solutions to the principal question before us - what will be the nature and response to the challenges of inequality in an increasingly complex and interdependent economic and political world. International, national and provincial politics in the end is all about local politics. We all live in a world, in a nation state and in an area within that state. But every day we work with and interact with people in our local communities, people who live immediately around us. Political values start at home. That is where our voices must be heard most clearly.  

Rob Ford is not the reason I support Olivia Chow. The fact is there is a dark side dominating and re-emerging in our midst and in our world. That ominous and powerful obstacle - the relentless pursuit of profit without regard to consequences, impact or harm to our world and to each other - has deep pockets, unrelenting selfishness and alarming short-sightedness.

Olivia should be the next Mayor of Toronto because she will promote and give voice to our collective and emerging better sides.

Brian Shell 

August 20, 2014. 

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MENTAL STRESS AT WORK AND COMPENSATION IN ONTARIO

by Administrator21. August 2014 10:47

Every once in a while, precedents are set that benefit employees. It is important that lawyers who advocate for human rights - including for equality, fair treatment, disability rights, equal access to the law, health and safety concerns, workplace rights, assist in spreading the word. 

Everyone is affected by workplace stress. Sometimes workplace stress causes ascertainable and diagnosable mental disorders that require time away from work. Everyone should be aware of their newly won rights to receive workers' compensation benefits in Ontario in such circumstances.

This blog is about one of these precedents. 

The Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found the prohibition against benefits entitlements for mental stress claims is unconstitutional. In Decision No. 2157-09, the  WSIAT refused  to apply subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997, (“WSIA”) on the basis that these exemption provisions violate the equality rights provisions of the Canadian Charter of Rights and Freedoms. 

In Ontario it is generally understood that insured employees  are entitled to benefits from the Workplace Safety and Insurance Board (“WSIB”) if they are injured in the workplace or suffer a work-related injury.  This general statement of entitlement  is set out in section 13 of the WSIA. 

However, there has been a general exemption to benefit entitlement. This exemption is set out in section 13(4) of the WSIA:  “... a worker is not entitled to benefits under the insurance plan for mental stress.”  Presumably this exemption is there because of the floodgates concerns  - the cost of insuring such benefits would be borne by employers - plus the cost-related concerns that of the alleged and presumed unreliability of establishing causation between workplace incidents and mental stress claims. 

The exemption  was recently successfully challenged  on the basis that subsections 13(4) and  13(5) violate  the equality rights provision of the Charter. 

The claimant worker was a nurse at a hospital. The worker claimed entitlement for mental stress resulting from ill treatment by one of the doctors, from 1990 and continuing to June 2002.  The ill treatment is reported to have included yelling at the worker and demeaning her in front of both colleagues and patients.  The ongoing mistreatment culminated in an incident where, when attempting to carry out her duties,  the doctor continually and repeatedly  interrupted her intake interviews with patients,  told her to “shoo” and closed the door on her heels.  The worker felt that the doctor  interfered  with her ability to perform her job. She  brought her concerns to management. The employer's response that  her responsibilities would be significantly reduced.

Shortly after this demotion, the worker felt that she could no longer continue working at the hospital.  She sought medical and psychiatric treatment and was diagnosed with an adjustment disorder with mixed features of anxiety and depression which were attributed to workplace stressors.

The worker filed a claim for benefits with the WSIB. The claim was not approved  on the basis that benefits for mental stress claims were prohibited.   The worker appealed.  

For the reasons set out in Decision No. 2157/09I, the WSIAT determined that the worker would have entitlement for mental stress under the WSIA, but for subsections 13(4) and (5).  The worker subsequently challenged sections 13(4) and 13(5) on the grounds that they violated the Charter equality rights protection. .

The WSIAT  held  that section 13(4) and 13(5) created a distinction based upon the ground of mental disability that is substantively discriminatory and in violation of Charter equality rights.  By  prohibiting benefits for mental stress claimants, sections 13(4) and 13(5) of the WSIA forced these individuals to pursue more complicated and costly tort remedies, requiring that they prove negligence as a prerequisite to receiving compensation. This  deprived  them of the historic trade-off of the no-fault workers' compensation scheme. With the conclusion that  the impugned provisions were substantively discriminatory,  the WSIAT proceeded to consider whether the statutory provisions could nevertheless be justified under s. 1 of the Charter, the "free and democratic society "functional requirement test."

Under the section1 analysis, the WSIAT found fault with the provision on three grounds: rational connection, minimal impairment and proportionality.  First, the panel determined that there was moderate evidence of an association between job strain and mental disorders and found that physicians are able to give reliable opinions about the causation of mental disorders.  On this basis, the panel found that there was no rational connection between the WSIA's prohibition on mental stress claims and the WSIA's stated purpose of providing no-fault compensation for injuries that arise out of an in the course of employment.  Second, the Panel found that the provisions did not impair the equality rights of mental stress claimants as minimally as possible as there were viable alternative policy approaches, as noted by evidence of policy and legislation in other provinces.  Finally, the Panel found that there was no proportionality between the harmful effects of the measure and any potential beneficial objectives it may have.

In conclusion, the WSIAT determined that sections 13(4) and 13(5) of the WSIA violated the equality rights provisions in the Charter, and were not justified under s. 1. The WSIAT therefore declined to give any effect to section 13(4) and 13(5).  The worker's right to compensation was restored.

The decision reminds us of the maxim, good facts make good law, and, to borrow from Bob Dylan, the 'times they are a changin" . We have awaited this result for a long time. It arrives at a moment when mental illness issues, such as those "caused" by relationships and within the  workplace environment - and at home and elsewhere - surface as one of the principal constructs of our speeded up and complex society and workplace environments, when we are gaining startling and emerging understandings of brain function, and where stigma related to mental disease is slowly but inevitably,  dissipating. 

While it is  likely that this very important WSIAT decision will be  judicially reviewed (the WSIAT and the governing provincial Liberals and Premier Wynne will make this call), in the meantime the successful elimination of the statutory obstacle to benefits for those suffering from workplace mental stress provides an opportunity for workers experiencing mental stress-related illnesses as a result of workplace stressors to file successful claims where the facts and the medical evidence support receipt of compensation benefits.

If you are a worker in Ontario and believe that you suffer from mental stress caused by your work or workplace, you may now be eligible for compensation from the WSIB.

Questions? Send us a note by email, or give us a call and schedule a Consultation.

Steven Sagle

Brian Shell  

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WHY BLOG? WHO CARES? WHY READ OUR BLOG?

by Administrator21. August 2014 10:37

We have decided to communicate via this blog to our clients and friends, to inquiring readers, to the public at large and to interested media representatives in Ontario, across Canada and wherever the worldwide web may reach.  

Why? and Why Now?

The times have changed. We all use Internet information sources. Some are reliable. Some are entertaining. Many are misleading. Few are truly informative and thoughtful. We strive to be one of the few that brings insight to you, that provokes you to think about your life and world, and that encourages you to stop, think and act.

We will write about a wide range of issues: 

  • Employment matters, to be sure.
  • The exercise of rights at the workplace. 
  • The benefits of collective action and effective unions. 
  • The limits to collective bargaining in the post modern and industrial West.
  • The limits of a rights and law-based approach to inequality. 
  • The erosion of workplace rights in Canada and beyond. 
  • How "globalization" is a clarion call to stymie engaged political debate and discourse about the present imperial age. 
  • International events and affairs as they pertain to rights and obligations. 
  • Human rights writ large - what are human rights in Ontario, in Bangladesh, in Central Java, in Sierra Leone, in Iran, in Russia or in France? How are they the same? Why do they differ?
  • What does it mean if our focus is about human rights while we are surrounded by inequality at home and abroad and by ascertainable differential access to prosperity?
  • What does "social justice" mean? 

We will catalogue our blogs for easy access. 

We will not provide legal advice via blogs. 

Our blogs will at best be information and insight, a gloss on events that you have heard about, a comment about something that has been presented as significant but on close analysis has been mischaracterized, or a comment on something seemingly insignificant but that on closer analysis is meaningful and can teach us something about ourselves, our community and our society.

We will write not less than monthly and not more often than weekly.

Most importantly, we want our readers to shake their heads up and down or laterally when they have read what we have written, not because they agree with our views or perspective,† but because they understand or appreciate some concern in a more focused way than they did  minutes before.  

We blog because we care about you and about the society in which we all live and work, and the world writ large that impacts more and more profoundly on our everyday lives.

Thank you for your interest in what we think.
 
Brian Shell

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