Federal Employment Insurance Laws prevail over conflicting provincial health and safety legislation

Following an industrial accident, the Commission de la santé et de la sécurité du travail (“CSST”) paid to B, a worker, an income replacement indemnity. During B’s eligibility to these benefits, the CSST complied with a formal demand from the Canada Employment Insurance Commission (“CEIC”) in order to recover the sums paid to B, but to which he was not entitled.

Since CEIC had paid to B amounts he was not entitled to receive, it availed itself of the permission it has, under section 126(4) of the Employment Insurance Act, to recover sums owed to a person directly in the hands of a third party. B, thus losing the benefits he used to receive from the CSST, challenged the legality of the process by invoking section 144 of the Act respecting industrial accidents and occupational diseases (“AIAOD”) which provides that benefits paid by the CSST are unseizable.

The Supreme Court, noting the conflict between these two provisions, had to decide which would prevail. In its view, the purpose of the peremptory power of the CEIC is to ensure the integrity of the employment insurance system by making it possible to recover overpaid benefits. Furthermore, this purpose would be frustrated if it where impossible to seize those sums because of the application of the AIAOD.

The Supreme Court decides : because of the conflict between the objectives of both acts, section 144 of the AIAOD is inoperative when it comes to recovery orders from the CEIC.

 In collaboration with Audrey Anne Choinard, student at Norton Rose Canada LLP.

Internships - a gateway to secure employment or indentured servitude?

At law firms, internships are not only the norm, they are required by the Québec Bar. Prospective lawyers are recruited out of law school for articling positions they will hold after passing the bar exams.

Internships also exist in a lot of other professions and trades. Due to recent economic turmoil, they have become an even more important resource for many employers. As David Sherman explained in last week's Montreal Gazette:

The recession, mixed with high unemployment, is pushing companies and hungry potential employees to look for new ways to come together. Internships, where young people get a chance to try their hand at a job while employers assess candidates at a substantial savings in wages while not committing to permanent jobs and the salaries and benefits that go with it, are finding favour at many companies.

Firms like Bombardier Inc., Deloitte Canada, Pratt & Whitney Canada Corp., Boehringer Ingelheim (Canada) Ltd., Research in Motion Ltd., Nestlé Canada Ltd., and many others are all taking students for a term-at-a-time on-the-job training.

Some of these internships are paid . However, from Mr. Sherman's article, it would appear that some are unpaid and that this might be illegal:

The law in Quebec is clear. Unsalaried internships are legal if the skills being taught are part of a recognized educational curriculum. Otherwise, all employees are entitled to at least a minimum wage.

Jean-François Pelchat, spokesperson for the Quebec’s commission des normes du travail, says in a 2010 survey of employee problems about seven per cent reported not being paid for work. In 2004 it was just over five per cent.

The Confederation des Syndicats Nationaux’s vice-president Jacques Letourneau says they’re all for young people taking intern positions, but want them paid according to minimum wage laws.

Mr. Sherman is indeed correct. The law is clear. However, how can it be policed? Should it be policed? If a student wants to work for free, should they be allowed to?

In my view, the law serves to protect people who might otherwise be talked into working for free on the promise of paid employment. While most employers wouldn't do this, it apparently does happen.

Time to Take Stock - Montreal Gazette

This was written by me published today by the Montreal Gazette.

At the beginning of every new year talk turns to resolutions. Resolutions are both forward-looking and reflective at the same time. We try and learn from our mistakes. People ask themselves what they will do (or not do) this year that is different from the last. In January of every year, magazines, newspapers and TV are filled with talk of resolutions and tips for achieving them. As a general rule, I don’t make New Year’s resolutions. I try and deal with issues as they arise. Mostly, when my wife tells me to do something, I resolve to do it… immediately. I can’t wait for a new year!

However, January is a good time to take stock of our lives, both professionally and personally. From a professional perspective, they are the perfect time to implement new policies, procedures, raises, bonus, etc. As an employment and labour lawyer, I am often only called when there’s a problem relating to one or many employees. It is a reactive situation where there is not often time to reflect on why the employer is in the situation it is currently in. However, I often use New Year’s as an opportunity to be proactive with clients and discuss the framework of their relationships with their employees.

Indeed, many expensive and emotionally difficult problems can be avoided by having a solid framework in place. January is a great time to take a good look at that framework. For example, does your company have a detailed employee manual or handbook or specific policies in place which adequately cover vacation, sick leave, expense accounts, confidentiality, maternity leave, harassment issues? Do you have a privacy policy in place? Have your employees received anti-harassment training recently? Having adequate policies and training in place can help prevent problems before they arise and mitigate damages if ever complaints or lawsuits were to be filed.

Do your employees have valid contracts in place which protect both them and the company? While written contracts are not necessarily required, the granting of a raise or promotion for the new year is the perfect opportunity to draft a contract which outlines what each party expects from the other. Setting expectations is essential in avoiding conflict later on in an employment relationship. It is also important for employees to know who they report to and how they are being evaluated. Similarly, supervisors need to know how they must evaluate and how to manage performance properly. After all, it can be difficult for an employer to discipline or fire an employee for cause if the employee was never advised of what was expected from them.

Throughout this new year, we will all spend a lot of time at work. It is very important that all of that time be both productive and as enjoyable as possible. By taking stock of our employment relationships now and working to improve them, we help ensure a smooth year. Personally, I still resolve to do whatever my wife tells me… immediately.