The Ontario Divisional Court has held that provincial law requiring employers to re-employ injured workers applies to federal employers.
Section 54 of Ontario’s Workers’ Compensation Act (now called the Workplace Safety and Insurance Act) provides “that an employer shall offer to re-employ an injured worker in his own work or other suitable work, with accommodation up to the point of undue hardship.”
The court has penalized the Canadian Pacific Railway $8,626, finding that CP violated Sec. 54 by not making “a significant effort to accommodate Larry Minshall respecting his permanent job” at CP, as well as in neglecting to offer him temporary work.
CP contended that the Ontario law could not apply to it because, constitutionally the provinces cannot legislate in areas of federal jurisdiction. CP, of course, is a federal (which is to say interprovincial) undertaking.
Q How can a provincial law apply to a federal undertaking?
A Writing for the court, Justice Katherine Swinton has ruled that Sec. 54 is “an integral part of the compensation system” in the province and does not conflict with anything in the Canada Labour Code, the labour legislation applicable to federally-regulated workplaces.
Federally regulated employers can comply with the law in both jurisdictions, the judge notes — in this case, by respecting the more employee-oriented Ontario law.
The federal code, Justice Swinton adds, says (like much employment standards law) that it mandates minimum standards, which are not to affect “any rights or benefits of an employee under the law...more favourable to the employee.”
This makes Sec. 54 consistent and compatible with the Canada Labour Code, Justice Swinton says. “Sec. 54 does not interfere with the vital and essential parts of a federal undertaking.”
Justice Swinton cites a case from 1920 to demonstrate that Canadian law “recognized long ago that provincial workers’ compensation legislation is applicable to federal undertakings,” such as CP. Provincial labour legislation trespasses on federal turf “only when the provincial law intrudes on the vital and essential operations of the federal undertaking,” Justice Swinton writes.
In requiring that employers re-employ injured workers, Sec. 54 “is an integral part of the workers’ compensation scheme that does not interfere with the vital and essential parts of the operation of a federal undertaking.” Vocational rehabilitation, that is, remains within provincial jurisdiction.
For more information: Canadian Pacific Railway v. Ontario (WSI Appeals Tribunal), Divisional Court File No. 447/98, Feb. 22/00.
Lengthy notice ruling for reliable service
Q How much notice would you give, if any, in the following circumstances? And starting when?
For 15 curling seasons, year to year, Bill Jordison has been the icemaker at your arena. In late summer during each of those years, he comes down for a coffee to find out what day in September you want him to start. He knows that the last day of his job will be the last curling match of the season, in April.
You have just taken over running the arena. You discover that, year to year, the arena has provided Jordison with a record of employment. On the record, his job is said to be seasonal with an unknown recall date. There is a box labelled “not returning,” but in Jordison’s case it is never ticked.
You or someone from the arena’s board will later tell a judge that, to save money, you decided to reduce staff and to use a new method of icemaking, the jet-ice system.
On May 6, at the end of the 1995 season, when Jordison is turning 63, you send him a letter inviting him to apply for his old job as well as for other ice-staff work. He applies, but he doesn’t get a job.
Jordison knows from your May 6 letter that things are changing at the arena. That leaves four months until his usual start time. Is that sufficient notice of termination?
Given that his work is seasonal, do you have to give him any notice at all?
Does notice run from May, or from when he discovers that he doesn’t get the job, in August?
A The Saskatchewan Court of Queen’s Bench has said that the Caledonia Curling Co-operative (affectionately called “the Callie”) owed Jordison seven months’ notice.
As Jordison admitted that the May 6 letter suggested to him that his old arrangement was over, the court calculates notice from that day, meaning that in the end the Callie owed him only three months’ remuneration.
Although Jordison worked seasonally, the court has ruled that he was a permanent employee, and therefore entitled to reasonable notice.
In reaching that conclusion, the court has considered Jordison’s 15 years of reliable service and the fact that the Callie never marked his employment record as “not returning.” That is, his contract did not seem to end each season.
For more information: Jordison v. Caledonian Curling Co-operative Ltd., 2000 SKQB 55, Q.B.G. No. 3506 of 1995 J.C.R., Feb. 7/00.
Jeffrey Miller is editor of Canadian Employment Law Today. For subscription information, call (416) 609-3800 or 1-800-387-5164.
Section 54 of Ontario’s Workers’ Compensation Act (now called the Workplace Safety and Insurance Act) provides “that an employer shall offer to re-employ an injured worker in his own work or other suitable work, with accommodation up to the point of undue hardship.”
The court has penalized the Canadian Pacific Railway $8,626, finding that CP violated Sec. 54 by not making “a significant effort to accommodate Larry Minshall respecting his permanent job” at CP, as well as in neglecting to offer him temporary work.
CP contended that the Ontario law could not apply to it because, constitutionally the provinces cannot legislate in areas of federal jurisdiction. CP, of course, is a federal (which is to say interprovincial) undertaking.
Q How can a provincial law apply to a federal undertaking?
A Writing for the court, Justice Katherine Swinton has ruled that Sec. 54 is “an integral part of the compensation system” in the province and does not conflict with anything in the Canada Labour Code, the labour legislation applicable to federally-regulated workplaces.
Federally regulated employers can comply with the law in both jurisdictions, the judge notes — in this case, by respecting the more employee-oriented Ontario law.
The federal code, Justice Swinton adds, says (like much employment standards law) that it mandates minimum standards, which are not to affect “any rights or benefits of an employee under the law...more favourable to the employee.”
This makes Sec. 54 consistent and compatible with the Canada Labour Code, Justice Swinton says. “Sec. 54 does not interfere with the vital and essential parts of a federal undertaking.”
Justice Swinton cites a case from 1920 to demonstrate that Canadian law “recognized long ago that provincial workers’ compensation legislation is applicable to federal undertakings,” such as CP. Provincial labour legislation trespasses on federal turf “only when the provincial law intrudes on the vital and essential operations of the federal undertaking,” Justice Swinton writes.
In requiring that employers re-employ injured workers, Sec. 54 “is an integral part of the workers’ compensation scheme that does not interfere with the vital and essential parts of the operation of a federal undertaking.” Vocational rehabilitation, that is, remains within provincial jurisdiction.
For more information: Canadian Pacific Railway v. Ontario (WSI Appeals Tribunal), Divisional Court File No. 447/98, Feb. 22/00.
Lengthy notice ruling for reliable service
Q How much notice would you give, if any, in the following circumstances? And starting when?
For 15 curling seasons, year to year, Bill Jordison has been the icemaker at your arena. In late summer during each of those years, he comes down for a coffee to find out what day in September you want him to start. He knows that the last day of his job will be the last curling match of the season, in April.
You have just taken over running the arena. You discover that, year to year, the arena has provided Jordison with a record of employment. On the record, his job is said to be seasonal with an unknown recall date. There is a box labelled “not returning,” but in Jordison’s case it is never ticked.
You or someone from the arena’s board will later tell a judge that, to save money, you decided to reduce staff and to use a new method of icemaking, the jet-ice system.
On May 6, at the end of the 1995 season, when Jordison is turning 63, you send him a letter inviting him to apply for his old job as well as for other ice-staff work. He applies, but he doesn’t get a job.
Jordison knows from your May 6 letter that things are changing at the arena. That leaves four months until his usual start time. Is that sufficient notice of termination?
Given that his work is seasonal, do you have to give him any notice at all?
Does notice run from May, or from when he discovers that he doesn’t get the job, in August?
A The Saskatchewan Court of Queen’s Bench has said that the Caledonia Curling Co-operative (affectionately called “the Callie”) owed Jordison seven months’ notice.
As Jordison admitted that the May 6 letter suggested to him that his old arrangement was over, the court calculates notice from that day, meaning that in the end the Callie owed him only three months’ remuneration.
Although Jordison worked seasonally, the court has ruled that he was a permanent employee, and therefore entitled to reasonable notice.
In reaching that conclusion, the court has considered Jordison’s 15 years of reliable service and the fact that the Callie never marked his employment record as “not returning.” That is, his contract did not seem to end each season.
For more information: Jordison v. Caledonian Curling Co-operative Ltd., 2000 SKQB 55, Q.B.G. No. 3506 of 1995 J.C.R., Feb. 7/00.
Jeffrey Miller is editor of Canadian Employment Law Today. For subscription information, call (416) 609-3800 or 1-800-387-5164.
