doing business in canada - Davies Ward Phillips & Vineberg LLP

The Québec statute allows an employee to be absent from work for an extended period of time for reasonsrelated to his or her health or the health of his or her family. For example, an employee can be absent for asmuch as 104 weeks if his or her child has a serious and potentially fatal illness (rights to leaves of absence underthe Ontario statute are much less generous). Moreover, the employer has the obligation, at the end of the leaveof absence, to reinstate the employee in his or her former position with the same benefits, including the wagesto which the employee would have been entitled had the employee remained at work.In both Ontario and Québec, additional requirements are imposed in respect of simultaneous (or within certainspecified time-frames) terminations of large numbers of employees, which may include the giving of additionalnotice to employees and providing prescribed information regarding the impact of the termination to provincialauthorities.LABOUR RELATIONSCanada promotes the principle of collective bargaining between employers and employees. Employees,excluding those in managerial positions, may form bargaining units represented by specific trade unions. Unionsare often organized along industry lines, such as the automotive or retail industry.Once a union has been certified and has given notice to the employer, the employer has a duty to bargain withthe union in good faith to reach a collective agreement. A number of statutory conditions must be met beforeemployees can lawfully strike or an employer can lawfully lock them out. Conciliation, arbitration and mediationare tools available to help employers and employees settle disputes. Labour disputes are adjudicated in Ontarioby the Ontario Labour Relations Board, in Québec by the Commission des relations du travail and for federallyregulatedemployees by the Canada Industrial Relations Board. These specialized tribunals also deal with issuesrelating to the organization of unions and their representation of employees, with a view to preventing unfairlabour practices and encouraging good faith bargaining.While some Canadian jurisdictions limit the use of strikebreakers and require employers to maintain strikingworkers as employees, the Québec Labour Code prohibits altogether an employer from hiring anyone to replacestriking or locked-out employees unless the replacement is a management employee who works in theestablishment affected by the strike or lock-out.EQUALITYHUMAN RIGHTSThe federal government and all the provincial governments have adopted human rights legislation, whichprohibits discrimination in the workplace.In Ontario, the Human Rights Code provides that, subject to bona fide occupational requirements, an employermust treat people equally without discrimination or harassment on the basis of race, ancestry, place of origin,colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, familystatus or physical or mental disability. Alcohol or drug dependence has been found to be a disability for thepurpose of the Human Rights Code. Therefore, employers in Ontario generally cannot impose mandatory drugtesting of all employees. On June 30, 2008, new legislation came into effect changing the human rights systemin Ontario. Now, the Human Rights Tribunal of Ontario, as opposed to the Ontario Human Rights Commission,deals with all claims of discrimination filed under the Code. It resolves applications through mediation andadjudication. It can make orders where it finds that a complaint is justified, awarding monetary compensation orother restitution to the complainant, or requiring a party in contravention of the Code to comply with it.The Québec Charter of human rights and freedoms provides that no one may discriminate on prohibited groundsin respect of the hiring, apprenticeship, duration of probationary period, vocational training, promotion, transfer,Employment Law 57