Smoke blowing curbed, whistle-blowing encouraged

Ontario pension plan surplus policies • Pension governance • Non-smoking workplaces • Whistle-blower laws • Workplace violence and harassment • Ontario human rights complaint process • New Brunswick minimum wage increase • Newfoundland passes compassionate care • B.C. protects data from being exported • Other changes to labour laws

As usual, the fall has been busy with legislative initiatives, as well as policy announcements from various government and industry groups.

Ontario pension plan surplus policies

The repercussions of the Supreme Court of Canada’s decision in Monsanto Canada Inc. v. Ontario Superintendent of Financial Services (Monsanto) continue to be felt in several policy changes. The Financial Services Commission of Ontario (FSCO), has responded with two new policies on full and partial pension plan wind-ups, namely Policy S900-510, Application by Employer for Payment of Surplus on Full Wind-Up of a Pension Plan, and Policy S900-511, Applications by Employer for Payment of Surplus on Partial Wind-Up of a Pension Plan. The new policies are meant to address the differences between distribution of surplus in full and partial wind-up situations, thereby eliminating undue delay in approving future surplus applications.

FSCO has also responded to the Supreme Court of Canada’s dismissal of an application for leave to appeal the Ontario Court of Appeal’s decision in Aegon Canada Inc. and Transamerica Life Canada v. ING Canada Inc. (Transamerica). The Court of Appeal ruled that surplus assets derived from a pension plan that was subject to a trust could not be used to fund liabilities arising from another plan that was not subject to that trust. In response, FSCO has issued new guidelines stating that Transamerica does not prevent consideration of an application to transfer assets on sale or merger as long as one of the following terms are met.

1. The plans have no defined benefit component, or if they do, they are not subject to a trust.

2. The transfer is being made to a newly established plan and the following conditions apply:

•the transfer does not breach the terms of the original plans or trusts;

•on a sale, unless the employer clearly owns the surplus in the original plan, a proportionate share of assets, including surplus assets, is transferred to the new plan; and

•the surplus entitlement language under the new and original plans is consistent.

3. The receiving plan, in the case of a merger, undertakes to maintain the transferred assets separate and apart from the other assets of the plan, within the plan terms, and the terms of the transferring plans and trusts do not prohibit a transfer to a successor plan and the surplus entitlement language under the receiving and transferring plan is consistent.

4. A court of competent jurisdiction has determined that the transfer of assets is legal and binding and all rights of appeal have been exhausted.

5. Other differentiating factors have been presented to the superintendent to consider on a case-by-case basis.

Pension governance

The Canadian Association of Pension Supervisory Authorities (CAPSA), released its final Pension Plan Governance Guidelines on Oct. 25. The guidelines set out 11 principles, which clarify all parties’ roles and responsibilities, and set out the steps to properly run a pension plan. The guidelines encompass all aspects of governance, including investment performance, conflicts of interest, monitoring, communication and documentation. Compliance is voluntary, and there is no implementation target date.

Non-smoking workplaces

The trend to extinguish smoking from the workplace is gaining momentum. Manitoba and New Brunswick have led the pack, with Ontario introducing legislation late last year.

Manitoba’s Non-Smokers Health Protection Act, which took effect on Oct. 1, bans smoking in all enclosed public places and indoor workplaces where the province has jurisdiction. It does not apply to federal work sites or reserve lands, or to outdoor eating and drinking areas. Some businesses, including group living facilities and hotels, are allowed to maintain designated smoking rooms under certain circumstances.

New Brunswick’s Smoke-Free Places Act also came into effect on Oct. 1. The act applies to enclosed public places and to indoor workplaces. The definition of “indoor workplace” includes adjacent corridors, lobbies, stairwells, elevators, escalators, eating areas, washrooms or other enclosed areas frequented by employees.

In addition to banning smoking in enclosed workplaces, Ontario’s proposed Smoke-Free Ontario Act would ban smoking in vehicles used for work, private clubs, and even designated smoking rooms currently allowed under some municipal bylaws. The bill will take effect in May 2006 if passed.

Whistle-blower laws

The federal government has been working on two so-called “whistle-blower laws,” designed to protect employees who expose wrongdoing, such as government or corporate corruption. It introduced Bill C-11, the Public Servants Disclosure Protection Act, on Oct. 8. In addition, Bill C-31, which amends the Criminal Code of Canada, came into effect on Sept. 15. It makes it a criminal offence for employers to punish employees who provide information to a law enforcement agency about real or potential crimes committed by the employer.

Saskatchewan has introduced its own whistle-blower law. Bill 86, the Labour Standards Amendment Act (No. 2), received first reading on Nov. 19. Workers would be able to report illegal actions to a supervisor, or to a law enforcement agency. The bill also protects such workers from retribution or retaliation by empowering the director of labour standards to deal with a complaint of wrongful dismissal or discrimination due to reporting an illegal activity.

Workplace violence and harassment

The issue of violence and harassment in the workplace has always been an inter-disciplinary one, involving employment law, health and safety, human rights and criminal laws relating to assault and threats. Ontario has chosen to deal with the topic by proposing amendments to its Occupational Health and Safety Act. Bill 131, introduced on Oct. 20, would impose duties on employers, supervisors and workers with respect to acts of workplace violence or harassment. “Workplace violence or harassment” is defined as acts of physical or psychological violence or coercion, psychological harassment or misuse of power committed in the workplace. Employers will be required to:

•develop a written code of conduct, with formal policies and procedures;

•set up a team of specialists in management, human resources, security, labour relations, health, law and risk management to assess potential workplace violence or harassment;

•keep accurate incident reports, report workplace violence involving physical or sexual assault to the police; and

•provide training to all employees on these topics.

Ontario human rights complaint process

The Ontario Human Rights Commission has changed its complaint drafting process, effective Oct. 1, 2004. In the past, complaints were drafted by commission staff in consultation with complainants. Given the 38-per-cent increase in complaints last year, the commission decided to have complainants draft their own complaints, and re-deploy staff to investigation and mediation.

Commission staff will review self-drafted complaints to make sure they comply with guidelines and provide necessary particulars. Staff will continue to provide assistance for those who experience difficulty drafting their own complaints due to language barriers or disabilities.

New Brunswick minimum wage increase

New Brunswick’s minimum wage rates are increasing effective Jan. 1, 2005. The general minimum wage will increase 10 cents per hour, to $6.30 an hour In addition, the minimum wage payable for time worked in excess of 44 hours per week will increase from $9.30 to $9.45 per hour. Wages for employees whose hours of work per week are unverifiable and who are not strictly employed on a commission basis will go up from $272.80 to $277.20 per week. The government intends to raise the minimum wage to $6.60 per hour within this mandate.

Newfoundland passes compassionate care

Newfoundland and Labrador passed Bill 38, the Act to Amend the Labour Standards Act, on Dec. 9, making compassionate care leave available to workers. Employees can take up to eight weeks of leave to care for a family member facing a significant risk of death within six months. As with maternity and parental leave provisions, employees are protected from discipline, demotion or dismissal for taking a compassionate care leave.

B.C. protects data from being exported

Due to the possibility that personal data can be accessed by foreign powers, the British Columbia government introduced Bill 73 on Oct. 7 and passed it on Oct. 21, when the bill took effect. Bill 73 amends the province’s public-sector privacy legislation, the Freedom of Information and Protection of Privacy Act, to restrict public bodies and service providers from storing, accessing or disclosing personal information outside Canada.

The bill also requires public bodies and service providers to report any foreign demand for disclosure of personal data, and protects whistle-blowers who report foreign demands for information.

The penalty for violating the new provisions is fines of up to $500,000 for corporations and $2,000 for employees.

Other changes to labour laws

Ontario’s Bill 63, which would undo the previous government’s 60-hour work week, was passed on Dec. 9, and will take effect on Mar. 1, 2005, not Jan. 1 as had been planned. The bill prohibits employers from requiring or permitting employees to work more than 48 hours a week, unless:

•the employees have agreed to do so in writing;

•the employer has given the employees a Ministry of Labour information sheet setting out their rights and the employer’s obligations; and

•the employer has applied for, and received, consent for excess working hours from the director of employment standards.

Other measures rolling back the previous government’s labour standards amendments are found in Ontario’s Bill 144, introduced in November. The bill would restore the Labour Relations Board’s power to grant automatic certification or dismiss certification applications in cases of labour law violations. The bill would also restore a card-based union registration system for the construction sector; remove the requirement for decertification posters in the workplace; and remove the requirement for unions to disclose the names and salaries of union officials earning more than $100,000 per year. (For a closer look at changes visit, select “Advanced Search” and enter article #3583.)

In Saskatchewan, the Minister of Labour intends to review unproclaimed changes to the Labour Standards Act that would require employers to offer part-time employees more hours of work based on length of service. This requirement was part of the 1995 amendments to the Labour Standards Act but was never proclaimed. The government is drafting regulations to clarify the legislation and the types of businesses affected.

Sari Sanders is a lawyer and head of Hewitt Canada’s research group. She may be contacted at (416) 225-5001 or [email protected].

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