September 2005

Report on Canadian

Labour & Employment Law Published by the Labour and Employment Group

Editors Karen Bock Carl Cunningham Brian P. Smeenk Karen M. Sargeant Contributors Joanna Carvalho Ben Ratelband Christopher McHardy Naseem Malik Fred Headon Rachel Ravary

Contents $500,000 Punitive Damages Award Shocks Honda . . . . . . . . . . . . . . . . . .1 Ontario Report – In The Meantime… Interim Reinstatement Powers of the Ontario Labour Relations Board . . . 3 Western Report – BC’s Court of Appeal permits certification of employee class action . . . . . . . . . . . . .5 Immigration Corner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Québec Report – The Cost of Employee Training – More Than you Bargained For? . . . . .9 Q&A – Blogging in the Workplace . . . . . . .11

A quarterly update on developments in Labour and Employment law across Canada

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$500,000 Punitive Damages Award Shocks Honda By Joanna M. Carvalho

The case of Keays v. Honda Canada Inc. has received a lot of attention. It is the largest award of punitive damages in a wrongful dismissal action in Canadian history. Leaving aside the headlinegrabbing dollar figures, this case emphasizes the hazards of harshly treating employees who are ill or disabled, particularly those with illnesses that are difficult to diagnose.

What did Honda do? Kevin Keays joined Honda in 1986. For most of his employment he was employed in the Quality Engineering Department at Honda’s Alliston, Ontario plant. Keays’ health deteriorated and he commenced receiving LTD benefits in 1996. He was diagnosed with Chronic Fatigue Syndrome (“CFS”) in 1997 and received LTD benefits until December 1998. These benefits were terminated following a work capacity evaluation conducted on behalf of the insurer.

Following his return to work “under protest,” Honda exempted Keays from its attendance-related progressive discipline policy. However, Keays was required to provide a medical note for each and every absence, an obligation that was not placed on employees suffering from “mainstream” illnesses. The trial judge found that this obligation made “little sense” since there was no diagnostic test for CFS. The trial judge also found that Keays’ expressed these concerns to Honda, but was met with “stonewalling.” During a meeting with Keays, Honda’s physician Dr. “A” suggested that Keays return to the production line. Keays complained to his supervisor that Dr. A had “threatened” to return him to the production line. Mr. Keays’ sporadic absences continued and Honda hired Dr. “B” to assess Mr. Keays. Keays’ hired a lawyer, who wrote a letter that the trial judge characterized as “conciliatory in the extreme.” The lawyer sought a resolution to the situation and clarification of the purpose of the meeting with Dr. “B.” Honda refused to deal with Keays’ lawyer. It unilaterally cancelled the accommodation measure thus making Keays subject to the

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attendance-related discipline policy. When Keays’ continued to refuse to meet with Dr. B without Honda clarifying the purpose of the meeting, Honda terminated his employment for insubordination.

was not easily transferable to another employer in Alliston, Ontario. Since Honda had a flat management structure, the trial judge concluded that dismissal “had the same impact on him as it would have on a member of senior management, up to and including the president.”

The Trial Judge’s Decision The trial judge found that Keays was a “dedicated and conscientious employee,” who was unable to satisfy the ‘efficient’ operation mandated by Honda because of disability-related absenteeism.

A “large whack” is required to awaken a wealthy and powerful defendant to its responsibilities.

No Just Cause: Requesting that Keays meet with Dr. B was not a reasonable order because a meeting was not the appropriate and logical next step in addressing Keays’ absences. Keays had already consented to disclosure of his medical reports which confirmed the diagnosis of CFS. Even if the order was reasonable, Keays had a reasonable excuse for disobeying it: he had experienced a history of mistreatment by Honda, including wrongful termination of LTD benefits, being hounded about his absences, impractical accommodation requirements, unilateral withdrawal of accommodation, a previous confrontational meeting with a Honda physician, Honda’s refusal to provide clarification of the reason for the meeting, and Honda’s refusal to deal with Keays’ lawyer. In the circumstances, termination of employment was a disproportionate response to Keays’ alleged insubordination. Notice Period: The trial judge awarded Keays 15 months’ notice. Even though he had only 14 years of service, Keays’ specialized training in auto production

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Increased Notice Period for Bad Faith: Honda’s bad faith in the manner of dismissing Keays warranted a further 9 months’ notice period. Honda was found to have misrepresented the opinions of its doctors (who could not 'verify’ a CFS diagnosis), implied that Keays’ medical condition was ‘bogus’, refused to deal with Keays’ conciliatory counsel and threatened Keays with dismissal if he did not meet with Dr. B. Punitive Damages: The trial judge was extremely critical of Honda’s conduct and found that Keays was a victim of discrimination and harassment, including that: (1) Keays had to ‘earn’ his accommodation and had to ‘earn’ dispensation from potential discipline by presenting a medical note, even though this was not a requirement for mainstream illnesses; (2) Honda refused to remove discipline from Keays’ record; (3) Honda threatened, by implication, to return Keays to the production line; (4) Honda’s conduct was planned and deliberate and formed a protracted “conspiracy”; and (5) Keays had particular vulnerability to Honda’s conduct because of his disability. The trial judge relied on previous judicial statements that a “large whack” is required to awaken a wealthy and powerful defendant to its

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responsibilities. He awarded $500,00 in punitive damages as a form of deterrence and denunciation of Honda’s conduct.

What You Can Do to Avoid Being 'Whacked' Like This? 1. Do not assume an employee is a malingerer. Act on facts and evidence, not assumptions. 2. Document the reason why accommodation options are no longer feasible. There was no apparent reason for Honda’s decision to unilaterally cancel its accommodation program for Keays, leaving the trial judge to conclude the intention was to put pressure on Keays, in bad faith. 3. Carefully consider how, and what, medical information should be requested. Remember to focus on the employee’s actual ability to work. 4. Take steps to ensure a “Company doctor’s” opinion is impartial. The trial judge was very critical of Dr. B’s “hardball approach” to workplace absences and referred to Honda requesting that Keays meet with Dr. B as a “set-up.” 5. Do not misrepresent medical information. In this case, Honda misquoted its own physician’s opinions regarding the legitimacy of Keays’ condition. 6. Don’t ignore the fact that your employee has retained a lawyer. The refusal by Honda to deal with Keays’ lawyer was a factor in the damages award. 7. Consult with us if you are in doubt. The shock associated with a $500,000 award of punitive damages is a good reminder that it is important to be sure that you are complying with your legal obligations. Good legal advice can help!

Ontario Report In The Meantime… Interim Reinstatement Powers of the Ontario Labour Relations Board By Ben Ratelband

Just because an employee is fired doesn’t mean he or she will necessarily be out of the workplace until there has been a hearing and a decision on the merits of the case. The Ontario Labour Relations Board (“OLRB”) recently ordered interim reinstatement of an employee (“Martin”) who claimed that his dismissal was a reprisal for seeking to enforce the Occupational Health and Safety Act (“OHSA”).

What Did Martin Do? Martin, an electrician, had made a number of safety-related complaints throughout his employment. He was fired by his employer (“Tricin”) after refusing to sign a warning given to him for leaving his post without authorization.

Carefully consider how, and what, medical information should be requested. Remember to focus on the employee’s actual ability to work.

Martin filed an application under Section 50 of the OHSA, alleging that Tricin fired him as a reprisal for his past health and safety activities. He also filed an interim application in which he asked the OLRB to reinstate him pending the outcome of his Section 50 reprisal complaint.

The Decision Although the OLRB’s general powers to order interim reinstatement were rescinded by the Legislature under the Bill 7 amendments to Section 98 of the Ontario Labour Relations Act (“LRA”), the OLRB found that this did not apply to applications under Section 50 of the McCarthy Tétrault LLP

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OHSA. Under those applications, the OLRB concluded, it retains jurisdiction to reinstate an employee pending the outcome of the application.

Employers who dismiss an employee who has been involved in health and

In coming to its decision to reinstate, the Board relied on affidavit evidence filed by Tricin and Martin. The OLRB applied a two-part test to that evidence. First, the OLRB considered the likelihood of Martin’s success in his original OHSA complaint. The OLRB concluded that, in the circumstances, Martin’s complaint appeared compelling. It was not disputed that Martin had a good employment record and had made a number of safetyrelated complaints. Also, he had been fired after a written warning for a relatively minor offence.

safety complaints in the past should be prepared to respond not only to a Section 50 reprisal complaint but also to an interim reinstatement application.

Under the second branch of the test, the OLRB balanced the respective harm to the parties of granting or not granting the interim reinstatement application. In that regard, the OLRB concluded that it could be harmful to the workplace as a whole if employees were afraid to exercise their rights under the OHSA. Accordingly, the balance of harm favoured the employee.

Implications Floodgates Opening? In arriving at its conclusion that Martin should be reinstated, the OLRB candidly stated that its decision could lead to a “flood” of interim reinstatement applications. Since the Martin decision last year, we have seen a number of applications for interim reinstatement accompanying McCarthy Tétrault LLP

reprisal complaints under Section 50 of the OHSA. But it may not stop there. Under the proposed Bill 144 amendments to the LRA, the Ontario Government is proposing to give back the OLRB its broad interim power in unfair Labour Practice Complaints to reinstate employees who are dismissed during a union organizing campaign.

Impact on Employers? Employers who dismiss an employee who has been involved in health and safety complaints in the past should be prepared to respond not only to a Section 50 reprisal complaint but also to an interim reinstatement application. This will require the employer to file a very quick interim response with supporting affidavit evidence to convince the OLRB that interim reinstatement is not appropriate in the circumstances. In light of the above discussion, it is clear that the Martin decision, coupled with the proposed Bill 144 amendments to the LRA, is likely to have a significant impact on employers and their ability to remove problematic employees from their workplaces. These developments will also certainly affect employers' decision-making when considering whether or not to discipline or dismiss such an employee. The likelihood of interim reinstatement must now be considered. The Martin decision also offers a foreshadowing of what may be to come regarding dismissals during union organizing campaign, once the Bill 144 amendments become law.

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Western Report BC’s Court of Appeal permits certification of employee class action

The Crown conceded four of the five requirements for certification set out in the Class Proceedings Act, but argued that the claim did not disclose a cause of action.

By Christopher M. McHardy

Youbou, a sawmill community on Vancouver Island, relied on the forest industry as its economic mainstay from 1913 to 2001, at which time the sawmill was closed. Mr. James, one of the employees affected by the closure of the sawmill, commenced a class action against the provincial government claiming the closure was due to its negligence. This decision highlights how class action litigation by employees is here to stay.

The Basis for the Case The Forest Act requires the Minister of Forests to seek to create or maintain employment opportunities when issuing a timber licence. The timber licence that sustained Youbou included a “protection clause” that required the sawmill operator to obtain the permission of the Minister if the operator wished to reduce operations or close the sawmill. Mr. James claimed that during the renegotiation of the timber licence in 1997, the Minister negligently omitted the “protection clause,” thereby breaching a duty of care to the employees whose jobs were protected by the clause and for whose benefit the clause was negotiated in the first place. The Crown appealed an order of the trial judge certifying the class action.

Was there a Cause of Action? The Court of Appeal found that the admitted inadvertence of the Ministry personnel in omitting the protection clause could constitute a cause of action in negligence and a breach of the Crown’s duty of care. The Court then examined the alleged duty of care to determine whether the harm was foreseeable and whether there was a sufficient connection or proximity between the employees and the Crown to support a claim of negligence. The Court found that since the protection clause had been included in the timber licence at the urging of the employees and their union to prevent a closure it was foreseeable that omission of the protection clause could cause harm to the employees. In terms of the proximity between the employees and the Crown, the Court found that even if the relationship between employees of the sawmill and the Crown was not an established category at law, the alleged facts demonstrated a high degree of closeness that could support a duty of care.

Even if the relationship between employees of the sawmill and the Crown was not an established category at law, the alleged facts demonstrated a high degree of closeness that could support a duty of care

In conclusion, the Court of Appeal found that it was not plain and obvious that there was no reasonable cause of action. The Crown’s appeal against the certification order was dismissed and the class action was permitted to proceed. McCarthy Tétrault LLP

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Bottom Line While certification was obtained in this case, there is a long way to go before Mr. James and the other former employees of the sawmill are successful in court. They still must establish that the Crown breached a duty of care and that the Crown is liable for the damages flowing from their loss of employment. Nonetheless, this case is a reminder that employment-related class actions are here to stay and will continue to be a source of novel claims.

In order for Stewart to be considered a fiduciary, the Court found that WBT would have had to vest Stewart with a high degree of trust and confidence

[James v. British Columbia, 2005 BCCA 136]

When is a competing employee not a competing employee? Do your “key employees” have fiduciary obligations? Have your “key employees” signed non-competition or nonsolicitation agreements? This recent decision highlights the distinction courts will make between fiduciary and nonfiduciary employees and the benefit of having written agreements with your “key employees.”

Employee Services Significant Customer In 1993 Stewart joined Westcan Bulk Transport Ltd. (“WBT”) as a truck driver and quickly became the primary driver servicing one of WBT’s major customers, Emco. Stewart was soon independently dealing with Emco and setting his own schedule, which often resulted in weekly overtime. In April of 1999, WBT changed this practice by limiting Stewart to 24 hauls per week McCarthy Tétrault LLP

and taking back the scheduling responsibility. This arrangement inconvenienced the customer, Emco, which was also unhappy with the service of the new drivers who delivered loads to make up for the restrictions placed on Stewart. In December of 1999, Emco approached Stewart, informed him that it would be ending its relationship with WBT, and offered him the contract. Stewart ignored the offer initially. Later he incorporated a company, purchased the necessary equipment, and began hauling for Emco.

Employee was not a Fiduciary WBT sued Stewart for damages alleging breach of fiduciary duty and confidence. The Alberta Court of Queen’s Bench found that Stewart was not a fiduciary: • he was not a director, officer or shareholder; • he had no management responsibilities; • he had no discretion or power within WBT's company hierarchy; • he had no authority to direct or delegate; and • he did not negotiate and was not aware of the haul rates with Emco. In order for Stewart to be considered a fiduciary, the Court found that WBT would have had to vest Stewart with a high degree of trust and confidence. While Stewart did develop a good working relationship with WBT, it was pursuant to his duty as a loyal employee rather than as a result of special, secret or confidential information about serving Emco’s needs. The Court found

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that Stewart was not a fiduciary as he did not have any ability to exercise some discretion or power, could not unilaterally exercise that power or discretion so as to affect WBT’s legal or practical interests, and did not affect the vulnerability of WBT.

Competing not breach of duty of fidelity The Court then looked at whether Stewart breached his implied employment duties of fidelity and good faith. Such duties would require Stewart to act honesty, faithfully and in the best interests of WBT, and prohibited him from acting in a manner that harmed or risked WBT’s interests. The Court found, however, that based on public policy considerations of free competition and facilitation of labour mobility, it is not a breach of fidelity to seek out employment with a competitor or to respond to a competitor’s offer. Stewart did not breach his duties of fidelity and good faith because, absent express contractual restrictions, he was entitled to make preparations to start his own business and he did not possess or use any confidential information about WBT's haul rates to do so. Further, he was not prohibited from competing with WBT once he left employment. Stewart’s conduct was distinguished from situations where employees approach a competitor and start competing with the employer while still employed. A key factor in this case was that Stewart was solicited to take over WBT’s contract after Emco made an irrevocable decision to seek another service provider. His predeparture business preparation was not

viewed as competitive activity; rather, it was viewed as an effort to determine the viability of Emco’s proposal. It was also noted that where an employee’s conduct comes close to the line or where circumstances are not clear, public policy considerations support the exercise of caution before imposing restrictive duties on employees. Stewart was found deserving of the exercise of such caution. The Court also found that Stewart did not possess confidential information and did not misuse any information communicated to him by his employer. Consequently, all claims against Stewart were dismissed.

What This Case Means This decision makes it clear that the courts will be reluctant to impose postemployment restrictions on non-fiduciary employees in the absence of clear breaches of employment obligations or written restrictive covenants. Such cases are a good reminder for you to reevaluate the protections your company has in place concerning non-fiduciary employees who have significant contact with key customers. [Westcan Bulk Transportation Ltd. v. Stewart, 2005 ABQB 97]

The Court found, however, that based on public policy considerations of free competition and facilitation of labour mobility, it is not a breach of fidelity to seek out employment with a competitor or to respond to a competitor’s offer

Immigration Corner By Naseem Malik

Hiring a foreign national to work in Canada without conducting proper due diligence checks in advance. What are the potential pitfalls? This article discusses why due diligence is important for McCarthy Tétrault LLP

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Canadian employers and how failing to exercise caution can be costly for both employers and potential employees.

The ideal candidate ?

The work permit that he possesses is employer-specific which means that he cannot lawfully work for another company in Canada without either getting his current work permit amended to reflect the new employer or by getting a new work permit altogether.

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Imagine the following scenario. You are responsible for hiring an important employee for your company. You and your team conduct numerous interviews, but cannot find a suitable person from the interview list. Then you take a call from someone who is interested in the position but did not meet the deadline to submit a resume. You encourage him to send in his resume , and are astounded to see that at least on paper he meets all of the necessary criteria that the position demands. Your team interviews him and are so impressed that you bring in your superiors to talk to the candidate. After the interview you convene with the rest of the people who met the person and everyone is in unanimous agreement that this person should be offered the position.

Due Diligence An employer’s best friend Upon reviewing the facts of the case, the lawyer informs you that despite having a valid Social Insurance Number, this person may still not be lawfully able to work for your company. The lawyer instructs you to gather additional information from the candidate. Once you have conducted due diligence, it turns out that the person is a foreign national from another country who has been in Canada on a valid work permit. His current work permit has another one month of validity on it so he has lawful status in the country, but was dismissed from his previous Canadian employer two months ago. The work permit that he possesses is employerspecific which means that he cannot lawfully work for another company in Canada without either getting his current work permit amended to reflect the new employer or by getting a new work permit altogether.

Upon closer review You go back to your office to review the file and are about to call the candidate when you notice that his resume states that he has only been in Canada for two years. Suddenly you wonder if he is a Canadian Citizen or permanent resident. You call up the candidate to ask a few more questions before offering him the job. The candidate is evasive when asked what his status is in Canada and tells you that he has a Social Insurance Number and can lawfully work in Canada. You sensibly decide to call in your legal counsel who recommends that an immigration lawyer should examine the case.

Things to watch out for The lesson of this example is to always be cautious when contemplating the hiring of a foreign national to work in Canada whether he is already here in Canada still overseas. Canadian immigration law imposes very severe penalties on employers who illegally employ a foreign national. In the example above, the person had a Social Insurance Number, which would be enough for a Canadian Citizen or permanent resident to work in Canada, but in most cases, a foreign national requires a work permit to engage in employment-related activities on

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Canadian soil. The work permit, if required, should either have the name of the prospective employer on it or, in some cases, may be blank if the permit has been granted in an “open” category (in the case of spouses, for example).

Consequences for getting it wrong The IRPA requires employers to conduct due diligence when employing foreign nationals It also, provides a statutory defence to a violation based on illegally employing a foreign national if an employer can demonstrate that it engaged in due diligence. Deciding not to engage in due diligence prior to hiring a foreign national not only opens the company up to potential liability but can in many instances deprive your company of having the services of the foreign national in the future. A foreign national, if found to be working illegally in Canada, may be sent out of the country on a departure or deportation order and in some circumstances may be issued an exclusion order which could bar him or her from entering Canada for a number of years.

What if I really need to hire this person? It is important for you to do your homework when considering hiring a foreign national. For example, the person may be the best person for the job but how difficult will it be for him or her to get the proper documentation to work for your company in Canada? In many instances changing the employer on a work permit can be done with a quick trip to the border, while other cases might take months to be resolved.

This extreme difference in timelines can be of critical importance to an employer in making a determination of whether the person can start the position in a timeframe which is appropriate.

Québec Report The Cost of Employee Training - More Than you Bargained For? By Fred W. Headon and Rachel Ravary

As part of the significant changes to the Act respecting Labour Standards (the “Act”) which came into effect on May 1st, 2003, the National Assembly of Québec introduced new provisions obliging employers to compensate employees required to take job-related training. These new provisions, which apply to all workers in Québec (except senior managerial personnel), whether or not they are covered by a collective agreement, reflect the recent trend in arbitration decisions. That being said, the first decisions interpreting these new provisions suggest that there may be unexpected and far-reaching consequences for Québec employers.

The Act now provides that an employee is deemed to be at work during any “trial period or training required by the employer” as well as during any travel required by the employer

Employers Must Pay for Training Time… The Act now provides that an employee is deemed to be at work during any “trial period or training required by the employer” as well as during any travel required by the employer. This means that any time spent by the employee in mandatory training, including any travel time required to attend such training, must be considered time at work for the McCarthy Tétrault LLP

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purposes of calculating pay under the Act, including overtime premiums. These hours will also count towards determining whether the employee has reached the maximum number of hours in a given day or week after which he or she may refuse to work. For unionized employees, these hours will also have to be considered when determining any entitlement contained in the collective agreement that is based on hours of work.

… And “Reasonable Expenses”

The troubling news for employers is that a number of arbitrators have concluded that training should be interpreted broadly and should encompass all of the procedures or activities necessary to acquire a desired skill or knowledge

The Act also requires an employer to reimburse an employee for all “reasonable expenses incurred where, at the request of the employer, the employee must travel or undergo training.” One issue that emerges is what constitutes a ‘reasonable expense’ for the purposes of the Act. The Labour Standards Commission has interpreted ‘reasonable expenses’ to mean normal and generally-accepted expenses, as opposed to those which are exaggerated or extravagant. It is up to the employer to establish the reasonable limits for employee training and travel expenses and any policy adopted by the employer to that end will serve as a guideline for the application of the Act. However, in the event of a grievance or complaint to the Labour Standards Commission, an employer’s definition of what constitutes a ‘reasonable expense’ will still be open to scrutiny.

Broad Interpretation of Training Training is not defined anywhere in the Act. The troubling news for employers is that a number of arbitrators have McCarthy Tétrault LLP

concluded that training should be interpreted broadly and should encompass all of the procedures or activities necessary to acquire a desired skill or knowledge. This would include, for instance, attending training sessions, seminars or conferences, on-the-job training, practical testing, etc., all of which are relatively easy for an employer to regulate. However, arbitrators have also held that the time required outside of formal training sessions for preparation, study and to complete assignments is an integral part of the training process and should be compensated, provided that such time and activities are necessary to the successful completion of training. This means that employers are required to pay employees, at overtime if applicable, for any time spent engaged in these activities. To date, arbitrators have provided little guidance as to how employers should regulate employee claims for preparation or study time, except to say that such claims must be judged on a case-by-case basis.

Managing Your Training Costs All of this may give rise to an unexpected financial burden for employers who provide job-related training for their Québec employees. However, a couple of things should be kept in mind. First, the provisions of the Act do not apply to training or travel that is not required by the employer. Thus, if the training in question is a optional benefit offered to employees, or is merely recommended by the employer, it is not covered by the Act. Any compensation for that training will be at the employer’s discretion. Moreover, for travel time and expenses to be compensable and count towards overtime

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entitlements, both the training and the travelling must be required by the employer. For example, if an employee chooses to attend mandatory training at a location which requires travel when such training is available at a closer location, he or she will not be entitled to the additional travel time and expenses. Second, all skill certification required for a position will not necessarily be compensable. At least one arbitrator has held that just because a particular skill or certification is a job requirement does not mean that it is ‘required by the employer’ for the purposes of the Act. In that case, the arbitrator concluded that the employer was not required to compensate teachers for attendance at a first aid certification course organized by the employer on a Saturday. Although valid first aid certification was a job requirement, the course organized by the employer was merely offered as a convenience to its staff and teachers were free to attend the course of their choice.

Conclusion We suggest that you review your existing policies regarding the payment of training time and expenses to employees in Quebec to ensure compliance with the amendments to the Act. Going forward you will need to remain flexible in your application of these provisions as what constitutes “training” and what will be deemed to be “required by the employer” will continue to be a determined on a case-by case basis.

Q&A Blogging in the Workplace By Carl Cunningham

Q: What is a blog? A: A “blog” is a web log. Blogs are akin to an on-line diary or an electronic discussion board. They often include a mix of commentary and opinions from visitors to the website. Q: Why employers care about blogs? A: The number of blogs are rapidly increasing at the rate of at least 20,000 per day. Many employers are finding themselves the subject a blog.

Blogs are relatively uncensored and can contain content which: (1) is defamatory about

Q: Are there any benefits to blogs? A: If used properly, there may be. Blogs can: (1) create two way dialogue between senior management and employees (2) encourage discussion through their informal nature (3) help senior management understand and respond to front-line issues and (4) permit virtual teams to share ideas from different locations. Q. A.

your company, your company’s products or your company’s employees (2) harms the reputation of your company (3) discloses confidential

What problems associated with blogs? Blogs are relatively uncensored and can contain content which: (1) is defamatory about your company, your company’s products or your company’s employees (2) harms the reputation of your company (3) discloses confidential McCarthy Tétrault LLP

information or (4) results in persons attributing the personal views of one of the company’s employees to the company.

Q.

A:

How can employers mitigate the risks associated with blogs? We recommend that you work with you legal counsel to review your

existing Internet or use of electronic media policy. Your company’s policy likely needs to be revised to address issues related to blogging and should include restrictions on when blogging is permitted in the workplace, when employees may attribute comments to the company and the consequences of breaching the policy.

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Every effort has been made to ensure the accuracy of this publication, but the comments are necessarily of a general nature, are for informational purposes only and do not constitute legal advice in any matter whatsoever. Clients are urged to seek specific advice on matters of concern and not rely solely on the text of this publication.