Monday, June 5, 2017

Canada - New Developments in Federal Labour Relations and Labour Standards Legislation: Towards a 'Super' Federal Labour Tribunal

By Theodore Goloff, Robinson Sheppard Shapiro, Montreal

Those who follow legislative developments regarding the Canada Labour Code, will remember that important changes came into effect in June 2015 – notably the “abandonment” of a purely “card counting” based system for federal union certification, and the requirement of a “certification election” to obtain union certification pursuant to that Code. Shortly after the election of the present Liberal government, in October 2015, the new administration tabled Bill C-4 whose purpose is to re-establish the old system without an obligatory certification vote. This Bill has not yet been adopted by the Parliament of Canada because of amendments by the Canadian Senate. This Bill is surely a matter to be closely followed!


Recently, following the Budget of March 22, 2017, the Federal Government tabled Bill C-44, very substantially changing the Canada Labour Code. Inter alia, the Bill amends Part III of the Code to increase parental leave from 37 to 63 weeks, allowing employees to take such leave within a period of 78 weeks following the birth or “due date”, instead of within 52 weeks as was the case previously. The changes allow as well for maternity leave to begin 13 weeks prior to the birth or “due date”, instead of 11 weeks as was the case previously. The Bill also provides for a new leave for an employee who is obliged to provide care to a gravely ill adult. Simple but significant changes in what may be their possible effects!


However important, the above changes are simply the tip of the iceberg, as other sections of Bill C-44 radically transforms the labour relations landscape for all employers falling within the federal jurisdiction in Canada.

In a nutshell, the Canada Industrial Relations Board [CIRB], now becomes the primary jurisdiction to hear all recourses under the Code whether pursuant to Part I, II and/or III that deal respectively with labour relations, health and safety and labour standards. There are, of course, clear parallels between the recent creation of the Quebec Administrative Labour Tribunal but as seen below, this proposed federal legislation goes further than its provincial counterpart.

The CIRB, which previously had jurisdiction to hear only recourses provided for violation of Part I, would now inherit the responsibilities previously given over to “appeal officers” provided for in Part II, in matters of health and safety.

With respect to Part III, the CIRB would now also have jurisdiction to hear complaints for alleged unjust dismissal filed pursuant to Section 240 – replacing outside arbitrators named by the Minister. It would still be possible for the CIRB to name an outside arbitrator to hear files both under Part II or Part III, depending upon the anticipated volume of complaints and the somewhat limited resources of the CIRB. This latter change could certainly impact on consistency of decisions.


A new and fundamental change introduced by this Bill is the creation of a regime of administrative fines for infractions of Parts II and III. It would now be the CIRB that would hear appeals from penalties imposed by the Ministerial order. Furthermore, alleged violations of Parts II and III would no longer be treated by the common law courts. While this may be the harbinger of a more efficient system of redress than recourse to penal complaints that have not been frequently used in the past, because decisions of the CIRB are without appeal, unlike decisions of the common law courts. This too represents a significant change.


Another substantive modification to the Code is a new Section dealing with claims for “reprisal” – the equivalent of what Quebec practitioners know as complaints for illegal practices pursuant to Section 122 and the following of the Quebec Labour Standards Act. But there is a twist. The Bill, as tabled, prohibits the joinder of a claim of reprisal with a complaint for unjust dismissal pursuant to Section 240 of the Federal Code. This joinder is allowed under the equivalent provisions of the Quebec Labour Standards Act.


Another substantive change to the Code deals with the recovery of sums allegedly due by an employer to an employee pursuant to Part III of the Code.

Firstly, the powers of inspectors are enlarged substantially because they now can decide whether or not a discharge has in fact taken place so as to bring into play Sections 230 and 235, that deal with notice of termination and severance. These same inspectors can order the end to practices that they deem violations of Part III, all this in addition to issuance of Ministerial (administrative) orders for investigation to assure compliance with the law.

In line with these changes, the CIRB (or an outside arbitrator that it assigns a case to) now may hear appeals from payment orders made by inspectors pursuant to Sections 251 et seq. of the Federal Code. The CIRB will as well now have the power to order costs in such cases, as well as extrajudicial costs incurred by the parties.

It is clear that the federal government’s intent is to reduce the number of violations of Part III, and to more effectively prosecute and penalize those who fail to respect the law, bearing in mind that these are minimum labour standards for employees falling under federal jurisdiction. In other words, legislation with teeth!

Will the creation of this “Super Tribunal”, with its attendant new powers, really shorten delays, lighten the load of common law courts and promote faster and better industrial justice? The federal government seems to think so! Effective or not, given this new landscape – employers beware!