Team Members ()

Publications ()

News ()

Pages ()

Services ()

  • Our Team

    Our Team

    • Lawyers & Clerks
    • Leadership Team
    • Board of Directors
    • Human Resources
    • Marketing & Business Development
    • Paraprofessional Services
  • Our Services

    Our Services

    • Service Areas
      • Aboriginal and Indigenous Law
      • Administrative Law
      • Agribusiness
      • Banking and Financial Services
      • Bankruptcy and Insolvency
      • Business Disputes
      • Business Immigration
      • Class Actions
      • Construction Law
      • Corporate and Business
      • Corporate Finance and Securities
      • Corporate Governance and Compliance
      • Cross-Border Law
      • Education Law
      • ESG (Environmental, Social, & Governance)
      • Estates and Trusts
      • Environmental Law
      • Foreign Direct Investment
      • Franchise Law
      • Health Law
      • Insurance
      • Intellectual Property
      • Labour and Employment
      • Litigation
      • Maritime Law
      • Media & Entertainment
      • Municipal Law
      • P3 and Infrastructure
      • Pensions and Benefits
      • Privacy, Data Protection and Cyber Security
      • Public Law
      • Real Estate
      • Regulation of Professions
      • SISIP LTD Allowances Class Action
      • Tax
      • Technology
      • View All
    • Industries
      • Cannabis
      • Construction & Property Development
      • Emerging & High Growth Companies
      • Energy & Natural Resources
      • Financial Services
      • Government & Institutions
      • Insurance
      • Manufacturing, Processing & Sales
      • Mining
      • Ocean Economy
      • Private Clients
      • Technology
      • View All
    • More Services
      • MC Advisory
      • MC Legal Lab
  • Our Insights
  • Our Firm

    Our Firm

    • Our Values
    • Our History
    • Our Representative Work
    • Our Global Reach
    • Our News
    • Diversity & Inclusion
    • Collective Social Responsibility
    • Pro Bono Program
  • Our Careers

    Our Careers

    • Lawyer Opportunities
    • Business Professional Opportunities
    • Paralegal & Legal Assistant Opportunities
    • Summer Student & Articling Opportunities
    • Diversity & Inclusion
    • Collective Social Responsibility
  • 1.866.439.6246
  • Contact
  • Search
  • Stay Updated
  • Contact Us
  • LexMundi World Ready
  • Privacy Policy
  • http://linkedin.com
  • http://facebook.com
  • http://twitter.com
  • 1.866.439.6246
Home > Our Insights > Matthews v. Ocean Nutrition Canada Ltd.: Employee Bonus Entitlement Lives On
Publication

Matthews v. Ocean Nutrition Canada Ltd.: Employee Bonus Entitlement Lives On

Published:

October 19, 2020

Author(s):

  • Malcolm Boyle, KC
  • Alex Warshick

Share

Print

On October 9, 2020, the Supreme Court of Canada delivered its decision in Matthews v. Ocean Nutrition Canada Ltd. on whether a former employee is entitled to bonus payments or other benefits during their reasonable notice of termination period. Reconfirming the employment contract effectively “remains alive” for the purposes of assessing the employee’s damages, the Court awarded a former employee over $1M under a contractual bonus incentive plan, the triggering event for which occurred after his “active” employment ceased but during the period of reasonable notice the employer owed him following his termination, and despite extensive plan wording purporting to limit entitlement to active employees. The Court enunciated a two-part test to determine whether bonus eligibility continued post-termination and provided guidance to employers on dealing in good faith with their employees. In doing so, the Court clarified three key bases for employer liability to employees for damages and offered a glimpse of what the future of employers’ liability exposure to employees might hold.

Here’s the question the Court considered, the two-part test it enunciated to answer it, and six actions employers can take to mitigate their employee liability exposure.

The $1M Question

Starting in 1997, Mr. Matthews was a senior executive with the employer and a party to the employer’s long term incentive plan contract, intended to reward and retain certain senior employees. Under the plan, qualified employees were entitled to payments if certain triggering events, including the sale of the employer, occurred. The plan, however, included two clauses purporting to remove that entitlement if the employee were no longer a “full-time employee” when the triggering event occurred:

[The employer] shall have no obligation under this [plan] to the Employee unless on the date of a [triggering] event the Employee is a full-time employee of [the employer]. For greater certainty, this [plan] shall be of no force and effect if the employee ceases to be an employee of [the employer], regardless of whether the Employee resigns or is terminated, with or without cause.

…

The Long Term Value Creation Bonus Plan does not have any current or future value other than on the date of a [triggering event] and shall not be calculated as part of the Employee’s compensation for any purpose including in connection with the Employee’s resignation or in any severance calculation.

In 2007, the employer hired a new COO. Mr. Matthews claimed, and the court agreed, the new COO undertook a four year “campaign” to “marginalize” Mr. Matthews’ role in the company, limiting his responsibilities, excluding him from managerial decisions, and lying to him about his status in the company. Mr. Matthews believed his employer would soon be sold, and stayed because of his entitlement under the plan to a portion of the proceeds from the company’s sale. In 2011, though, he resigned. His employer was sold 13 months later for $540M. Under the plan, Mr. Matthews would have been entitled to more than $1M. The employer refused to pay Mr. Matthews because he wasn’t an “active employee” at the sale date. Mr. Matthews sued, arguing that his resignation had in fact been a constructive dismissal (his employer had acted as though it were no longer bound by the employment contract, forcing him out), that his employer had carried out that dismissal in bad faith, and breached its duty of good faith in refusing to provide notice of termination and pay him under the plan.

The 2-Part Test

The N.S. Supreme Court decided the employer’s actions amounted to constructive dismissal of Mr. Matthews and awarded him 15 months’ common law reasonable notice, and his damages (monetary compensation for his losses) included what he would have received under the plan, had his employer given him proper notice of termination, because the triggering event occurred during this 15-month period. The employer appealed. The N.S. Court of Appeal agreed the employer constructively dismissed Mr. Matthews and 15 months was the appropriate notice period – but decided he was not entitled to the plan payment. Mr. Matthews appealed to the Supreme Court of Canada on the sole question of whether he was entitled to the plan payment. The Court set out a two-part test to determine whether a dismissed employee’s damages for the employer’s breach of the duty to give common law reasonable notice included bonus payments or certain other benefits:

“But For”. But for the termination, would the employee have been entitled to receive the bonus or benefit? Yes, but this was not an issue at the Supreme Court of Canada because neither party appealed both N.S. lower courts’ decision on the constructive dismissal or the reasonable notice period and entitlement to the payment under the plan arose during the notice period the court awarded.

Exclusion. Does the wording of the bonus or benefit plan or employment agreement unambiguously alter the employee’s common law right to damages for breach of the duty to provide reasonable notice? No. Courts will “strictly construe” clauses that exclude or limit the employee’s rights where the contract is “unilateral” (not negotiated between the parties), even if not necessarily a “standard form” contract (only a “limited number” of employees were parties to the plan). None of the wording used was enough to displace Mr. Matthews’ entitlement to damages:

  • “Full-time” or “active” employee. Matthews would have been “full-time” or “active” during the notice period if the employer hadn’t breached its duty to give reasonable notice. For the purposes of calculating common law damages for this breach, the employment contract notionally “remains alive” and damages are based on the employee’s total compensation – including any bonuses they would have earned during the notice period.
  • “With or without cause”. The exclusion clause must cover the exact circumstances that happened. Termination without cause doesn’t imply termination without notice. This was a termination without notice or an “unlawful termination” – which also wouldn’t have been enough even if it were in the plan. To calculate damages, the contract isn’t treated as “terminated” until the end of the reasonable notice period.
  • “Severance”. Damages for breach of the duty to give reasonable notice and “severance pay” are distinct legal concepts.

The 6 Employer Mitigation Actions

For years, Canadian courts have been blunt about their view that employees are vulnerable vis-à-vis employers, and they will protect employees’ rights. This paternalistic approach has informed the development of employment law jurisprudence generally; this decision is consistent with that approach. In Matthews v. Ocean Nutrition Canada Ltd., the Court recognized three separate and independent types of damages, explaining damages arising out of the same employment relationship or the termination of that relationship will be calculated differently depending on which of these three breaches the employee successfully claims – suggesting employers are exposed to liability on at least three separate fronts (though it did reconfirm there should be no double-recovery):

  • Damages for breach of the duty to provide reasonable notice.
  • Damages for bad faith in the manner of dismissal.
  • Damages for breach of the duty of good faith and honesty in the performance of a contract.

Here are six actions employers can take to mitigate their liability exposure to damages as a result of this decision:

Be Blunt. Review the wording of bonus, incentive, and other benefit plans and employment agreement termination provisions and revise them if necessary. The plan in this case used common words, thought to be sufficient to limit employees’ entitlement; Mr. Matthews’ own legal counsel described the language as, “as strong as he’s seen in such employment contracts”. Employers must go further about their intention that the employee not be entitled to partake in bonus or incentive plans post-termination or recover damages for bonus entitlements which would have been payable were the employee still employed, no matter what the circumstances and no matter what the purpose. We know now what words won’t suffice; we don’t know yet for sure what words will. But it’s clear that any exclusionary clause must contain an explicit and unambiguous waiver of the right to receive a bonus payment during any termination notice period; in short, the plan or contractual termination clause should spell out and limit damages on termination in advance, excluding or limiting entitlements to bonus, incentives or other payments. Adding a waiver of liability and of the right to sue for the bonus could also help enforce this exclusion or limitation. And while you’re at it:

  • Discretionary Plans. Look at the wording of any “discretionary” plans too. The Court stated that whether a bonus was an “integral part” of the employee’s compensation package for the purpose of calculating reasonable notice damages is only relevant if there’s doubt about whether they would have received it during the notice period, such as in the case of a “discretionary” bonus. However, it’s risky to rely solely on the discretionary nature of the bonus to disentitle an employee post-termination.
  • Notice. Just as with one-sided standard form agreements, consider ways to draw an employee’s attention to any exclusionary clauses in a bonus, incentive or benefits plan and how to evidence this attention. The Court signaled it might be appropriate in a future case to consider whether an employer adequately brought the clauses in a bonus plan contract that purport to limit or eliminate an employee’s common law right to damages to the employee’s attention. Ways include requiring the employee to initial the clause, bold it, underline it, and/or include a specific and separate clause acknowledging agreement to the term.
  • Employment Standards Laws. The Court also didn’t decide, but noted that, the question whether an exclusionary clause is consistent with minimum employment standards laws could arise. This could particularly be the case with statutory protections of rates of pay during notice periods. When reviewing the wording of any bonus, incentive or benefit plans, keep this question in mind too.

Be Certain. Or as certain as you can be. If your employment contracts don’t include a termination clause, consider reviewing and revising employment contracts to include one. The Court reconfirmed employers are entitled to terminate an employment contract at any time – but always subject to “common law reasonable notice”: the implied term, included in every employment contract, that the employer must provide the employee with reasonable notice upon termination (including a constructive dismissal) regardless of the presence or absence of good faith. However, it’s open to employers to displace common law reasonable notice with a contractual notice period by using a termination clause in an employment contract. This is appealing for many reasons, including giving the employer and the employee a degree of certainty: common law “reasonable notice” is notoriously uncertain to calculate. But this is a difficult task: similar to the interpretation of exclusionary clauses in bonus plans, courts closely scrutinize termination clauses, and any termination clause purporting to remove an employee’s right to common law reasonable notice must use clear, unambiguous language expressly specifying some other period of notice and complying with employment standards legislation. Following the Court’s decision in this case, these termination provisions should also exclude or limit the recovery of bonus payments or other incentives, as applicable, as part of the employee’s damages during the period of reasonable notice.

Be Careful. When contemplating changes to an employment contract or a bonus, incentive or benefit plan, or to an employment contract, however, be careful with existing employees. Implementing changes to these contracts vis-à-vis employees you hire in the future is easy. But implementing them vis-à-vis existing employees isn’t: unilaterally changing a fundamental term or condition of employment without providing the employee with “consideration” (something of new value in exchange) or sufficient advance notice is constructive dismissal. Practically, however, changing a bonus or employment contract can also create a business quandary for employers. For example, employers use bonus, incentive and benefit plans, including stock option plans or other equity compensation plans, to attract desirable employees to the business, and to keep them there, so the terms have to be attractive. Employers will need to balance risk mitigation with these business realities.

Be Honest. Be honest with employees throughout the employment relationship or you might have to pay – even if you don’t breach the duty to provide reasonable notice, and even if the conduct doesn’t amount to constructive dismissal. The Court confirmed the duty of honest and good faith performance of a contract (as it articulated in Bhasin v. Hrynew) also applies to employment contracts, separate and independent from the duty to give employees reasonable notice of termination, but declined to detail the contours of the damages that might arise from a breach of this duty in the employment context further. However, employers and senior managers must take extreme care in making promises or representations to an employee; untrue or bad faith promises or representations could result in claims for damages for bad faith conduct, independent of damages for reasonable notice. For example:

  • False representations that an employee will be “looked after” come profit-share or bonus allocation time, particularly if used as an inducement to retain an employee, could be a breach of this duty.
  • Similarly, continued promises or representations, even if vague, about an employee’s potential for promotion or advancement, when no such opportunity exists or is likely to exist, might also constitute bad faith dealing such that damages could arise—particularly if the employee has remained in the company’s service on the basis of these representations.
  • Other promises or representations about changes in responsibility or compensation, benefits or reimbursements, or the future of the employer, could all constitute compensable breaches of an employer’s duty to act in good faith and with honesty toward their employees.

While the scope of this duty in the employment context is still undefined, the Court appears ready to hear a case in which an employer’s bad faith conduct falling short of constructive dismissal could warrant damages. This begs the question: if, in this case, the triggering event for payment occurred after the end of the reasonable notice period, would Mr. Matthews still have been entitled to the plan payment, or to some other measure, as damages for breach of the duty of honest and good faith performance of a contract? This question could come up in any number of cases in which there’s no enforceable contractual exclusion clause, and the payment entitlement arises at a date beyond the reasonable notice period, for example stock option plans or other long-term compensation plans.

Be Nice. Or at least don’t be nasty – ever: it could catch up with you at the end of the employment relationship, even years later. The Court reconfirmed the duty to exercise good faith in the manner of dismissal (which it first articulated in Wallace v. United Grain Growers Ltd.) is also separate and independent from the duty to give employees reasonable notice of termination, and thus could also form a separate basis for damages. And although it acknowledged this issue wasn’t before the Court, the Court appeared willing to look back – way back – over the four year “campaign” during which the employer undermined Mr. Matthews, confirming the analysis of “bad faith in the manner of dismissal” can include a review of a pattern of behaviour that culminated in the constructive dismissal, over a long period of time, and not just the “tipping point” for the dismissal. So in addition to the more traditional examples of bad faith in the manner of dismissal, such as inappropriate refusal to provide a reference or conduct harming the employee’s reputation or causing embarrassment, repeated instances of bad behaviour, such as harassment or bullying, undermining, or ostracizing, even over many years, that culminates in constructive dismissal might be compensable by damages (aggravated and/or punitive)  over and above, and separate from, damages for breach of the duty to provide reasonable notice.

Be Fair. As it has in many decisions, the Court put considerable emphasis on the importance of work to a person’s self-worth and identity. Employers trying to tie bonuses, options, or retirement allowances to post-employment non-competition terms will want to keep this in mind. Courts could find an offer to pay an employee to give up their profession, a source of self-worth and identity, even for a limited time, to be in bad faith or to be an unconscionable bargain, particularly where there was unequal bargaining power between employer and employee and/or the terms of the offer were not negotiated, as in the context of one-sided standard form contract terms in Uber Technologies Inc. v. Heller.


Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2020. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

Share

Print
View Related Content

Related Lawyers

  • Alex Warshick

    Alex Warshick

    Lawyer

  • Malcolm Boyle, QC

    Malcolm Boyle, KC

    Partner

Related Services

  • Labour and Employment

Related Publications

View All Publications
  • 3 Top 2023 Labour & Employment Law Trends for Employers to Watch

    Feb 27, 2023

    2022 left important lasting implications for employers. With 2023 here, it’s time to look ahead to key issues that will affect employers in…

    Read More
    Publication
  • 5 Key 2022 Labour & Employment Law Learnings for Employers

    Jan 16, 2023

    2022 is in the rearview mirror, but the past year left lasting implications for employers. Here’s a retrospective on five of the key 2022…

    Read More
    Publication
  • Plugging Into The “Right to Disconnect”: 5 Key Employer FAQs

    Dec 1, 2022

    The COVID-19 pandemic drove remote work to unprecedented heights. Employee calls for greater flexibility, and cost savings for employers, have…

    Read More
    Publication
  • Day of Mourning for the Queen: What Employers Should Know

    Sep 15, 2022

    When Prime Minister Trudeau announced that September 19, 2022 would be a National Day of Mourning for Queen Elizabeth II, the Atlantic provinces…

    Read More
    Publication
  • Webinar | The Legal Case for Supporting Gender Diversity at Work

    Jun 23, 2022

    The current labour crunch is only strengthening the business case for building a workplace that’s welcoming to diverse employee pools –…

    Read More
    Webinar
  • P.E.I. Pay Transparency Legislation: 3 Employer Tips

    Jun 8, 2022

    Effective June 1, 2022, Bill 119 amended the P.E.I. Employment Standards Act to add new pay transparency provisions. One of the first of its…

    Read More
    Publication
  • Webinar | Employee Recruitment & Retention Strategies: Legal Risk Mitigation Tactics

    May 27, 2022

    The COVID-19 pandemic is (arguably) gone but the pre-pandemic labour crunch - for both white and blue collar workers - is back. And there’s no…

    Read More
    Webinar
  • Webinar | 3 Tactics to Expedite the Entry of Foreign Workers

    Apr 28, 2022

    The COVID-19 pandemic changed many aspects of the workplace for good – but pre-pandemic labour shortages isn’t one of them. While the…

    Read More
    Webinar
  • Atlantic Canada Minimum Wage Increases Effective April 1, 2022

    Apr 1, 2022

    While the Canada emergency response benefit (CERB) has ended, the focus on the concept of a universal or guaranteed basic income the COVID-19…

    Read More
    Publication
  • Webinar | Reconstructing the Post-Pandemic Workplace

    Mar 24, 2022

    COVID-19 public health restrictions are coming to an end, even though the COVID-19 virus is not. Employers face reconstructing their workplace…

    Read More
    Webinar
  • When Employee Participation in Public Protest Justifies Employer Discipline

    Mar 16, 2022

    In February 2022, thousands of people led by a convoy of trucks (many displaying company logos) from across Canada congregated in Ottawa and…

    Read More
    Publication
  • Webinar | Public Health Covid-19 Restriction Rollbacks: The Workplace Impact

    Feb 24, 2022

    As the Omicron wave wanes, and COVID-19 moves from pandemic to endemic, provincial governments have quickly pivoted to loosening – some even…

    Read More
    Webinar
  • P.E.I. Non-Disclosure Agreements Act: 3 Key Facts for Employers

    Feb 8, 2022

    This publication has been updated as at December 15, 2022. On May 17, 2022, the P.E.I. Non-disclosure Agreements Act took effect,…

    Read More
    Publication
  • Webinar | Mandatory Covid-19 Vaccination Policy Cases: Key Employer Insights

    Jan 27, 2022

    Since COVID-19 vaccinations rolled out, employers have grappled with workplace COVID-19  vaccination policies, with little guidance from courts…

    Read More
    Webinar
  • Mandatory COVID-19 Vaccination Policy Cases: 3 Employer Insights

    Dec 14, 2021

    This publication has been updated as at January 26, 2022. Since COVID-19 vaccinations rolled out, employers have been grappling with how to…

    Read More
    Publication
  • Webinar | The Hybrid Workplace: from Haphazard to Intentional

    Nov 25, 2021

    As COVID-19 continues, many workplaces have morphed from remote work arrangements into hybrid arrangements for many employees. By necessity,…

    Read More
    Webinar
  • Webinar | COVID-19 Labour & Employment Litigation Learnings

    Oct 28, 2021

    COVID-19 forced many employers to make temporary, and even permanent, changes to the terms of employees’ employment, from scheduling and…

    Read More
    Webinar
  • Northern Regional Health Authority v. Horrocks: Exclusive Jurisdiction Means Exclusive

    Oct 27, 2021

    On October 22, 2021, the Supreme Court of Canada, in Northern Regional Health Authority v. Horrocks, clarified that labour arbitrators have…

    Read More
    Publication
  • 7 Key COVID-19 Labour & Employment Litigation Learnings

    Sep 21, 2021

    This publication has been updated as at December 14, 2022. COVID-19 has been changing Canadian workplaces for 18 months. For some employees,…

    Read More
    Publication
  • 3 Legal Tools to Help Foster a Diverse & Inclusive Workplace

    Jul 21, 2021

    Many now agree: it’s imperative that workplaces be both diverse and inclusive. Perhaps the most often-quoted (and definitely most succinct)…

    Read More
    Publication
  • Federal OHS Violence & Harassment Prevention: 10 Key Changes January 1, 2021

    Jun 15, 2021

    As of January 1, 2021, federally regulated employers (such as banks, telephone and cable systems, most federal Crown corporations,…

    Read More
    Publication
  • 10 COVID-19 Workplace Vaccination Policy Tips

    Jun 10, 2021

    This publication has been updated as at August 27, 2021. With the COVID-19 vaccine widely available, and the COVID pandemic continuing,…

    Read More
    Publication
  • Tax Implications of Working from Home During COVID-19: 10 Employer FAQs

    Mar 31, 2021

    Close to five million Canadians who didn’t usually work from home, did so in 2020 because of the COVID-19 pandemic. Even as public health…

    Read More
    Publication
  • Atlantic Canada Minimum Wage Increases Effective April 1, 2021

    Mar 15, 2021

    The COVID-19 Pandemic has focused more attention on the concept of a universal or guaranteed basic income that at any other time in modern…

    Read More
    Publication
  • 10 Employer FAQs About Employee COVID-19 Testing & Vaccination

    Feb 16, 2021

    This publication has been updated as at September 17, 2021. Employers across the country – including the federal government, some…

    Read More
    Publication
  • Contracting Chaos: 5 Key 2020 Employment Contract Lessons

    Jan 21, 2021

    Well-drafted, properly implemented written employment contracts are a key tool to avoiding or resolving disputes during and at the end of…

    Read More
    Publication
  • Waksdale v. Swegon North America Inc.: Cause for Termination Clause Concern

    Jan 20, 2021

    Termination clauses, particularly “without cause” ones, are among the most important clauses to include in any employment agreement. But the…

    Read More
    Publication
  • P.E.I. Workplace Harassment Prevention Obligations: 5 Key Regulatory Changes July 1, 2020

    Nov 3, 2020

    This publication has been updated as at July 9, 2021. For some time, every Prince Edward Island employer has been required to comply with…

    Read More
    Publication
  • Playing it Safe: Employer Obligations To Employees Working From Home

    Aug 12, 2020

    This publication has been updated as of May 5, 2021. The ongoing COVID-19 pandemic has led many employees to continue working from home, by…

    Read More
    Publication
  • Uber Technologies Inc. v. Heller: One-Sided Standard Form Clauses May Be Unenforceable

    Jul 6, 2020

    On June 26, 2020, the Supreme Court of Canada released Uber Technologies Inc. v. Heller, a much-awaited decision regarding the enforceability of…

    Read More
    Publication
  • Temporary Immigration Measures Make Hiring Temporary Foreign Workers Easier

    May 14, 2020

    This publication has been updated as of April 23, 2021. Employers that hire and employ temporary foreign workers must comply with many and…

    Read More
    Publication
  • Coping with COVID-19: Planning for Business Reopening

    Apr 30, 2020

    While the world is still reeling from ongoing COVID-19 concerns, many provinces have announced plans to relax public health restrictions put in…

    Read More
    Publication
  • Coping with COVID-19: Employers’ Top 10 Immigration Law FAQs

    Apr 15, 2020

    The COVID-19 pandemic is disrupting more than Canada’s domestic workforce. It’s also disrupting Canadian employers’ access to temporary…

    Read More
    Publication
  • Atlantic Canada Minimum Wage Changes Effective April 1, 2020: More Than Wage Rates

    Apr 1, 2020

    Atlantic Canadian minimum wage rates (the lowest rate an employer is permitted to pay an employee) aren’t all that’s changing on April 1,…

    Read More
    Publication
  • Coping with COVID-19: (More) Employer FAQs

    Mar 27, 2020

    The COVID-19 novel coronavirus has evolved rapidly, and so have the workplace issues employers are facing – and the questions employers were…

    Read More
    Publication
  • Coping with COVID-19: Employer FAQs

    Mar 12, 2020

    The havoc that COVID-19 (a.k.a. “novel coronavirus” or SARS-CoV-2) is wreaking around the globe – and around workplaces – is about to…

    Read More
    Publication
  • Atlantic Canadian Employees’ Rights & Employers’ Obligations at Election Time

    Oct 10, 2019

    “Do the unexpected. Take 20 minutes out of your day, do what young people all over the world are dying to do: vote.” Rick Mercer (hailing…

    Read More
    Publication
  • 5 Key Changes to N.L. OHS Workplace Violence & Harassment Prevention Obligations January 1, 2020

    Sep 6, 2019

    This publication has been updated as at July 9, 2021. Violence and harassment is an unfortunate reality of society – and of the workplace.…

    Read More
    Publication
  • Managing Social Media @ Work: 3 Steps to an Effective Workplace Social Media Policy

    Jun 5, 2019

    Like it or not, Canadians live life online. More people - and more employees - are sharing more information, images and opinions with more…

    Read More
    Publication
  • 5 Basics Every Startup & Growing Business Should Know About Employment Law

    Apr 8, 2019

    Growing a business takes people. In early days, many startups have just one “employee”: the founder. At some point, the founder might retain…

    Read More
    Publication
  • New N.B. Workplace Anti-Violence & Harassment Obligations April 1, 2019

    Feb 27, 2019

    This publication has been updated as at July 9, 2021. As of April 1, 2019, employers of New Brunswick employees must comply with new…

    Read More
    Publication
  • Webinar | No Joking Matter: Complying with N.B. Workplace Anti-Violence & Harassment Requirements

    Feb 22, 2019

    As of April 1, 2019, employers of New Brunswick employees must comply with new occupational health and safety law requirements specific to…

    Read More
    Webinar
  • Immigration Law Compliance: 5 Key Best Practices for Employers

    Jan 31, 2019

    There’s no shortage of warnings of a worker shortage in Canada – and the consensus seems to be that it’s only going to get worse. The…

    Read More
    Publication
  • Privacy Interest in Personal Computer Contents: Supreme Court of Canada Confirms Ownership Isn’t 9/10 of the Law in R. v. Reeves

    Dec 19, 2018

    On December 13, 2018, the Supreme Court of Canada confirmed that a third party can’t waive a person’s right to privacy or their rights under…

    Read More
    Publication
  • How Canada’s New Impaired Driving Penalties Will Impact Canadian Immigrants & Employers

    Dec 18, 2018

    On December 18, 2018, the maximum sentence possible for impaired driving (among other things) will increase as the result of amendments to…

    Read More
    Publication
  • 10 Burning Employer FAQs About Cannabis @ Work

    Dec 13, 2018

    This publication has been updated as of October 15, 2020. Canada became only the second country in the world to legalize cannabis (or…

    Read More
    Publication
  • Webinar | 5 Key Immigration Law Compliance Best Practices for Human Resource Professionals

    Sep 28, 2018

    Immigration is one of the key solutions to looming (and current) worker shortages in Canada. But an employer that hires a foreign worker must…

    Read More
    Webinar
  • Sarah McInnes in workplace.ca | The Top 5 Immigration Law Facts Every HR Professional Should Know

    Sep 4, 2018

    Immigration is one of the key solutions to the looming (or in some cases, current) worker shortage in Canada. In her article, The Top 5…

    Read More
    Publication
  • Extended Parental Leave: What to Expect When Your Employee is Expecting

    Jul 16, 2018

    Every parent knows that a lot can happen in 18 months. Many employers agree. The federal government’s extension of employment insurance…

    Read More
    Publication
  • Webinar | 5 Workplace Policy Areas to Manage Marijuana Risks

    Jun 27, 2018

    The legalization of recreational cannabis in Canada is imminent. Employers are feeling the heat to prepare – even as they continue efforts to…

    Read More
    Webinar
  • Medical Marijuana, Residual Impairment & The Duty to Accommodate in Re Lower Churchill Transmission Construction Employers’ Assn. Inc. and IBEW, Local 1620 (Tizzard)

    Jun 8, 2018

    This publication has been updated as of September 28, 2020. In the last few years, many employers have been focused on preparing for and…

    Read More
    Publication
  • The Global Talent Stream: 5 Practical Learnings About the Latest Immigration Star

    May 24, 2018

    The Global Talent Stream is the central pillar of the Government of Canada’s recently launched Global Skills Strategy: an immigration program…

    Read More
    Publication
  • Accommodating Mental Disability: 5 Practical Tips

    May 11, 2018

    This article has been updated as of January 19, 2022. It can be challenging for employers to fulfill their legal duty to accommodate an…

    Read More
    Publication
  • A Lid on Medical Pot: No health Plan Coverage or Workers Compensation Benefits

    Apr 26, 2018

    The N.S. Court of Appeal has reached two decisions ending one employee’s quest for coverage of the costs of his medical marijuana – at least…

    Read More
    Publication
  • Webinar | #It’s Time: A 5-Step Sexual Harassment Risk Mitigation Strategy for Employers

    Apr 2, 2018

    Workplace sexual harassment isn’t a new issue, nor is it limited to any one industry or country – but it's one that far more women than men…

    Read More
    Webinar
  • More Valuable Than Money? The 5 Most Common Equity Compensation Plans

    Apr 2, 2018

    Equity compensation plans are a valuable and versatile tool for many corporations, from early-stage startups to established blue-chips.…

    Read More
    Publication
  • #It’s Time: A 5-Step Sexual Harassment Risk Mitigation Strategy for Employers

    Mar 29, 2018

    We updated this publication on March 11, 2020. The #metoo and #timesup movements drove workplace sexual harassment to the front and center of…

    Read More
    Publication
  • Be Diligent: 5 Practical Steps to Enforceable Workplace Policies

    Feb 2, 2018

    Many employers use written workplace policies as a day-to-day workplace management tool; common examples include attendance management policies,…

    Read More
    Publication
  • Medical Cannabis Health Benefits Coverage Strategy: Key Considerations

    Jan 25, 2018

    Insurers have generally been leery of coverage for medical cannabis in both the health benefit claims and in cost of care claims in the personal…

    Read More
    Publication
  • How the Pros Get Into Canada: 5 FAQs About the NAFTA Professional Work Permit

    Jan 18, 2018

    The future of the North American Free Trade Agreement (NAFTA), including NAFTA’s immigration-related provisions allowing cross-border mobility…

    Read More
    Publication
  • Denis Mahoney & Brittany Keating in the NLCA 2018 Construction Journal | Testing 1-2-3: The latest on drug & alcohol testing in safety-sensitive workplaces

    Dec 18, 2017

    The answer to the question, “What’s employers’ rationale for implementing workplace drug and alcohol testing?” is pretty…

    Read More
    Publication
  • 5 Helpful Holiday Hints for Human Resources

    Dec 8, 2017

    This article has been updated as of December 2, 2021. For many people, the holiday season now upon us is a fun-filled time of the year. But…

    Read More
    Publication
  • Protect Your Assets: 3 Best Practices for Intellectual Property (IP) Owners

    Oct 31, 2017

    Intellectual Property (IP) can be a valuable asset – even the most valuable asset – of a business. So it’s worth making sure the business…

    Read More
    Publication
  • No NAFTA? No Problem – For Temporary Business Travel, That Is

    Sep 22, 2017

    Canada’s most important trading relationship is – in all likelihood – about to change: the current U.S. administration has put the future…

    Read More
    Publication
  • 5 Employer “Family Status” Discrimination & Accommodation FAQs

    Sep 21, 2017

    This publication has been updated as at January 13, 2022. An increasing number of employees are struggling to meet the challenge of the…

    Read More
    Publication
  • Relief is Here: N.S. Registered Defined Benefit Plans Get Temporary Solvency Funding Relief

    Aug 11, 2017

    After years of low interest rates, and correspondingly high solvency liabilities, there’s growing recognition that the solvency funding model…

    Read More
    Publication
  • Federal Human Rights Law: No Gender Identity or Expression Discrimination

    Jul 28, 2017

    This publication has been updated as of October 14, 2020. On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the…

    Read More
    Publication
  • Take Pride @ Work: 5 Ways Employers Can Support Gender Diversity

    Jul 28, 2017

    This publication has been updated as at June 10, 2022.  The rapid rise in ESG (Environment, Social and Governance) principles has increased…

    Read More
    Publication
  • Jack Graham in Canadian Lawyer InHouse: Deconstructing the Workplace

    Jul 13, 2017

    More employees are seeking flexible work arrangements as a new way of working to better juggle their family and personal responsibilities. In…

    Read More
    Publication
  • 5 Key Steps for a Proper Workplace Investigation

    May 19, 2017

    Investigations are a vital - but difficult - part of workplace management. The value of a proper investigation can’t be overstated: it plays a…

    Read More
    Publication
  • Bradley Proctor in the Workplace Environment Health & Safety Reporter

    May 16, 2017

    Recreational cannabis isn’t legal yet: Canada’s federal government has proposed legislation to legalize and regulate access to recreational…

    Read More
    Publication
  • Cannabis Legalization in Canada: Seeds have sprouted, but the branches are still bare

    Apr 20, 2017

    On April 13, 2017, Canada’s federal government introduced legislation that, if passed into law, will legalize recreational cannabis in Canada.…

    Read More
    Publication
  • Nip it in the Bud: A 5 Step Plan for Employers to Prepare for Cannabis Legalization in Canada

    Apr 17, 2017

    Recreational cannabis isn’t legal yet - but much of the associated stigma is already gone, usage is up and employers are feeling the workplace…

    Read More
    Publication
  • The Atlantic Immigration Pilot Program (AIPP): 5 Key Opportunities & Risks for Employers

    Feb 22, 2017

    On January 1, 2022, the Atlantic Immigration Pilot Program became the permanent Atlantic Immigration Program (AIP). Learn more at From Pilot to…

    Read More
    Publication
  • 12 Key Do’s & Don’ts of Hiring & Firing

    Jan 31, 2017

    We updated this publication on March 1, 2023. The hiring process and the termination process are equally important stages of the employment…

    Read More
    Publication
  • 5 Employer FAQs About Religious Accommodation @ Work

    Dec 13, 2016

    Employers’ legal duty to accommodate employees seems to most frequently come up in the context of employees with disabilities. But that duty…

    Read More
    Publication
  • Businessperson or “Business Visitor”: Canada’s Business Visitor Visa Rules

    Nov 22, 2016

    Canada’s most important trading relationship might undergo some change with the results of the 2016 U.S. election. Facilitating cross-border…

    Read More
    Publication
  • The 5 Key Elements of an Attendance Management Program (AMP)

    Nov 15, 2016

    The employment contract is an exchange of labour for wages and other benefits, so employers are entitled to expect regular ongoing attendance…

    Read More
    Publication
  • 3 Key Employment Law Steps to Take Now to Help You Sell Later

    Oct 19, 2016

    Business owners wear many hats – including employer. Your employees may be your business’s greatest asset, but they could also be your…

    Read More
    Publication
  • Uber Angst: Employees & Independent Contractors in the Sharing Economy

    Sep 29, 2016

    Whether someone is an employee or an independent contractor has long caused employers a degree of angst. And the recent emergence of a new…

    Read More
    Publication
  • No Union? No Problem: Supreme Court of Canada Decides Canada Labour Code Bars Dismissal of Non-Unionized Employees Without Cause in Joseph Wilson v. Atomic Energy of Canada

    Jul 15, 2016

    On July 14, 2016, the Supreme Court of Canada decided that the “Unjust Dismissal” sections of the Canada Labour Code ensure that…

    Read More
    Publication
  • NS Dives into Pooled Registered Pension Plans (PRPP)

    Jun 30, 2016

    As of June 25, 2016, provincially regulated workers and employers in Nova Scotia, Quebec, BC and Saskatchewan can participate in Pooled…

    Read More
    Publication
  • Label Delicate: Workplace Dress Codes Test & Tips

    Jun 29, 2016

    Employers are entitled to mandate dress codes in the workplace, and even to discipline employees who refuse to comply. But a workplace dress…

    Read More
    Publication
  • The Legal Defence of Due Diligence: Top 5 FAQs

    May 2, 2016

    “Due diligence” is a legal defence to many charges under occupational health and safety (OHS) laws. Here are five of the most…

    Read More
    Publication
  • The Nuances of Labour Marketing Impact Assessments (LMIA): 2 Key Exemptions to Minimum Advertising Requirements

    Mar 29, 2016

    Applying for and obtaining a Labour Market Impact Assessment (LMIA) is a critical step in hiring a temporary foreign worker(s). Employers…

    Read More
    Publication
  • Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)

    Mar 9, 2016

    In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Code and sentencing to a…

    Read More
    Publication
  • 3 Tips to Manage Employee Tardiness Due to Adverse Weather Conditions

    Feb 23, 2016

    Employee tardiness is a significant problem for employers - and bad weather is one of the top three reasons that employees give for it according…

    Read More
    Publication
  • The Top 12 Employment Contract Terms

    Feb 1, 2016

    This publication has been updated as at November 15, 2022. A well drafted and properly implemented written employment contract can be…

    Read More
    Publication
  • An Ounce of Prevention is Worth a Pound of Response: The W-5’s of Managing Conflict & Preventing Harassment, Bullying & Violence @ Work

    Dec 7, 2015

    Violence has become an unfortunate reality in current society, and the workplace is not immune. With more people spending more time at work,…

    Read More
    Publication
  • 10 of the Top Employers’ Attendance Management Problems

    Aug 13, 2015

    The employment contract, at its core, is an exchange of work for compensation. So at a very basic level, employers are entitled to expect…

    Read More
    Publication
  • 3 Reasons for Directors, Officers and Supervisors To Take Occupational Health and Safety Personally

    Jun 25, 2015

    Most people know that a company itself has OHS obligations, and that it risks corporate liability if it violates those obligations. However, not…

    Read More
    Publication
  • 5 FAQs About Workplace Sex Discrimination

    Mar 31, 2015

    This publication has been updated as at June 24, 2021. Women make up close to half of the employed workforce: in 2019, Canadian women 15…

    Read More
    Publication
  • 5 Hot Tips to Help Employers Handle Office Romances

    Feb 13, 2015

    This publication has been updated as at January 26, 2022. With people spending so many of their waking hours at or connected to work these…

    Read More
    Publication
  • Charter Protects the Right to Strike

    Feb 2, 2015

    On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…

    Read More
    Publication
  • Bad Faith & Unfair Dealing in Employee Dismissal: 7 Lessons in 7 Years

    Jan 30, 2015

    In December 2014, the NL Supreme Court ordered an employer to pay its former employee $30,000 in moral damages to compensate him for the mental…

    Read More
    Publication
  • Privacy in Basic Cell Phones: SCC Continues Trend of Privacy Protection in R. v. Fearon

    Dec 11, 2014

    On December 11, 2014 the Supreme Court of Canada continued its trend to recognize privacy rights – and develop the law to protect them –…

    Read More
    Publication
  • 5 Tips to Manage Employer (Social) Host Liability

    Dec 5, 2014

    This article has been updated as of December 11, 2020. Employers host numerous events throughout the year – summer and holiday office…

    Read More
    Publication
  • Egg Films Epilogue: 5 Key Implications of NS Union Certification Based on “Industry” Dependence

    Nov 27, 2014

    Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence…

    Read More
    Publication
  • 5 New Obligations on NB Employers Effective September 1, 2014 in NB Employment Standards Act

    Sep 30, 2014

    Effective September 1, 2014 the NB government implemented five important changes to the NB Employment Standards Act – the minimum standards…

    Read More
    Publication
  • Canada’s Temporary Foreign Worker Program Overhaul

    Jul 9, 2014

    On June 20, 2014 the Federal Government announced a major overhaul of Canada’s Temporary Foreign Worker Program. With stringent enforcement…

    Read More
    Publication
  • Legal Update: Feds Crack Down On Employer Abuse Of Temporary Foreign Worker Program

    Apr 3, 2014

    On March 28, 2014 the Federal Government tabled Bill C-31 to implement the 2014 Federal Budget – including broad authority to impose cash…

    Read More
    Publication
  • Legal Update: More Changes to Federal Temporary Foreign Worker Program

    Jan 21, 2014

    On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations and new Ministerial Instructions changing the Federal…

    Read More
    Publication
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

    Read More
    Publication
  • Privacy Trumps Safety: SCC Strikes Down Mandatory Random Alcohol Testing Policy

    Jul 2, 2013

    On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp…

    Read More
    Publication
  • Legal Alert: Federal Temporary Foreign Worker Program Changes

    Apr 30, 2013

    Note: Effective December 31, 2013, the Federal Government made additional changes to the Federal Temporary Foreign Worker Program. Click here to…

    Read More
    Publication
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

    Read More
    Publication
  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

    Read More
    Publication
  • Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

    Oct 22, 2012

    Mr. Cole was a high school teacher with an employer owned and issued laptop computer.  He also used it for incidental personal purposes, which…

    Read More
    Publication
  • Court Confirms Reviewing Courts Should Give Early Due Deference to Administrative Decision-Makers

    Jul 10, 2012

    On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights…

    Read More
    Publication
  • “Canada Day” Or “July 1st”: Which Is The “Holiday” For Employees?

    Jun 14, 2012

    As any Canadian knows, July 1st – Canada Day – is the first long weekend of the summer; or is it?  This year, July 1st falls on a Sunday. …

    Read More
    Publication
  • 10 Tips to Deal with Employee Discipline for Social Media Use

    Mar 1, 2012

    Social media represents a profound cultural shift and employers must adapt if they want to avoid unnecessarily – and potentially costly –…

    Read More
    Publication
  • Alert: Significant Changes to NS Human Rights Complaint-Handling Procedure Effective January 1, 2012

    Jan 5, 2012

    Effective January 1, 2012, NS’s Human Rights Commission will receive, investigate and handle complaints under NS’s Human Rights Act under a…

    Read More
    Publication
  • Multiple Extensions of Termination Date Nullify Termination Notice

    Dec 19, 2011

    In a decision with application to Atlantic Canada, the Ontario Court of Appeal found that an employer’s multiple extensions of a terminated…

    Read More
    Publication
  • NB Court of Appeal Upholds Mandatory Random Alcohol Testing Policy

    Aug 6, 2011

    Note: On June 14, 2013 the Supreme Court of Canada issued its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v.…

    Read More
    Publication
  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

    Read More
    Publication
  • Changes to Federal Foreign Worker Regulations Effective April 1, 2011: A Serious Issue for Employers

    Mar 6, 2011

    In the midst of a sea of change, the Federal Government has enacted Regulatory changes significantly impacting employers who hire foreign…

    Read More
    Publication

Stay Updated

Subscribe to McInnes Cooper to stay current with our leading insights on legal updates, trends, news, events, and services.

Connect With Us:
  • Follow us on Twitter @mcinnescooper
  • Like us on Facebook @mcinnescooperlaw
  • Join us on LinkedIn @mcinnes-cooper
  • 1.866.439.6246
  • Privacy Policy
  • Copyright © 2023 — McInnes Cooper
Lex Mundi Logo MC Advisory Logo