Bill C-44, entitled Budget implementation Act 2017, received royal assent and came into force effective December 3, 2017. The bill introduced changes to, inter alia, the Canada Labour Code and the Employment Insurance Act.
Changes to the definition of ‘insured participant’ under the Employment Insurance Act
Bill C-44 would amend the definition of insured participant to include an unemployed person who paid, in at least five of the last 10 years, employee’s premiums that did not entitle them to a refund under 96(4) of the Employment Insurance Act (in other words their insurable income exceeded $2000 per year).
Changes to the Canada Labour Code
Duration of parental leave is increased
It amends the Canada Labour Code to, among other things, increase the maximum length of parental leave to 63 weeks, extend the period prior to the estimated date of birth when the maternity leave may begin to 13 weeks, create a leave for a family member to care for a critically ill adult and allow for the leave related to the critical illness of a child to be taken by a family member.
Appointment of external adjudicators by the CIRB Chairperson:
Bill C-44 effectively transfers the duties previously held by appeals officers under Part II of the CLC and of referees and adjudicators under Part III to the CIRB. The Chairperson of the Canadian Industrial Relations Board may therefore appoint an external adjudicator, who has all the powers and duties of the CIRB to determine any matter that comes before the CIRB under Parts II, III of the CLC (II: occupation health and safety, III: and standard hours, wages, vacations and holidays). Bill C-44 also proposes a strict privative clause in occupational health and safety matters, with respect to orders made by the CIRB which “shall not be questioned or reviewed in any court.” This may lead to a higher standard of deference in judicial reviews of CIRB decisions.
Complaints relating to reprisals:
It amends the complaint process to allow employees to submit written complaints to the CIRB if they believe that their employer has taken reprisals against them, notably for dismissing, suspending, laying off, or demoting them, imposing a financial, disciplinary, or other penalty on them because: the employee made a complaint for unjust dismissal; provided information regarding work conditions to the Minister to assist the Minister; testified or are about to testify in a proceeding relating to a complaint under this part of the CLC; or sought to exercise a right they enjoy under this part.
The employee may also complain if those factors are taken into account in a decision regarding their promotion or training, or if the employer threatens reprisals as a result of those factors. Moreover, an employer cannot exercise any of the above-mentioned reprisals on account of an employee’s pregnancy, a third-party undertaking to garnish the employee’s wages, sick leave taken by the employee, a work-related illness or injury, or the fact that the employee is a member of the reserve armed forces.
The employee may submit complaints under this part within 90 days of the date when the employee knew or ought to know of the action giving rise to the complaint. The amended CLC provides many means through which such a complaint may be dismissed, such as circumstances in which the CIRB is satisfied that the complaint is not within its jurisdiction, the complaint is frivolous, or there are other means available to resolve the dispute that should be pursued.
The CIRB may order the employer to cease the reprisal and reinstate the employee, compensate the employee, and do any other thing that the CIRB considers “equitable.” The CIRB’s decisions under this part are also subject to a strict privative clause.
Internal audit and inspector’s orders:
The amendments would allow the Minister of Labour to order an employer to conduct an internal audit of its practices to determine if the employer is in compliance with Part III and report the results to the Minister. Under the amended statute, if an inspector is of the opinion that an employer has contravened a provision of Part III, it may issue a compliance order requiring the employer to terminate the contravention. A party subject to a notice of compliance may send a request for review with reasons to the Minister after the order is served. The employer may only request the review of a payment order if it first pays to the Minister the amount it owes its employees. After receiving the request for review of a payment order, the Minister may confirm, rescind or vary it. The Minister may confirm a compliance order or rescind it, in which case an inspector shall be directed to re-examine the complaint.
A party affected by a decision made by the Minister may thereafter appeal the decision to the CIRB, unless it is a decision to rescind a notice of compliance or a notice of unfounded complaint. The CIRB may confirm, rescind or vary the decision, or order direct payment of wages held in trust by the receiver general. These decisions are subject to a strict privative clause.
Administrative penalty scheme:
Bill C-44 creates a new administrative penalty scheme vesting the Minister with the power to create regulations designating failures to comply with Parts II and III or orders under those parts to be violations. Any party that commits a violation is liable to a penalty determined by regulation. Any person who directed, authorized or assented to a violation is also liable for the penalty, such as a director, officer, or agent of a corporation. It is not a defence for the person subject to the penalty to say that they exercised their due diligence to prevent the violation. If the violation continues over more than one day, then each subsequent day it is committed shall be treated as a new violation. The limitation period for a notice of violation to be submitted in respect of a violation is two years.
A party served with a notice of violation may, within 30 days of service, request that the Minister review the penalty and/or the facts of the alleged violation. The Minister will then be tasked with assessing if the amount of the penalty for the violation was determined in accordance with the regulations and/or whether or not the applicant committed the violation. Such a decision may be appealed to the CIRB within 15 days, which shall assess the penalty and/or whether or not the violation was committed on the balance of probabilities. This CIRB decision is subject to a strict privative clause. Once a penalty becomes payable, there is a limitation period of five years for the federal government to recover it.
Christopher Deehy is a partner with LaPointe Rosenstein Marchand Melançon