Workplace Harassment Liability for Employers
Employers in Manitoba may not be aware of recent amendments to regulations to the Workplace Safety and Health Act (the “Act”) which place a number of strict duties on employers relating to the creation, maintenance and enforcement of certain workplace policies. The protection of workers in their employment remains one of the key purposes of the Act. This protection extends not only to the physical safety of employees, but, just as importantly, to their mental health.
Recent trends across Canada indicate strongly that employers are being held increasingly more accountable for taking the required measures to ensure workers are not being unnecessarily exposed to factors which may have an adverse effect on their mental health. In a world where there are new forms of liability around every corner, ensuring that organizational culture is conducive to promoting employee mental health is of paramount importance to employers.
Among the mental health issues that occur are stress, anxiety and depression, all of which can arise as the result of an employer’s failure to prevent occurrences of workplace harassment. Employers are expected to take proactive steps to prevent such occurrences, by actively ensuring the following steps are taken in their workplaces:
- Developing and implementing harassment prevention policies;
- Routinely updating existing policies;
- Educating and training workers in the adherence to policies;
- Providing new employees with policies;
- Publicly posting policies in the workplace; and
- Ensuring compliance by investigating and following up complaints promptly and thoroughly.
The Act and regulations set the minimum standards and define prohibited harassment. Employers who breach the Act or the regulations may be prosecuted and found guilty of an offence. Penalties include fines of up $250.000.00, with even heavier penalties for repeat offences, and imprisonment up to six months, and prohibition from working in a supervising capacity for six months. Officers and directors of the employing Corporation who directed, authorized, assented to or acquiesced in, or participated in the offence are likewise liable to such penalties. Employers are therefore strongly encouraged to look at their existing harassment policies, and to determine whether their current practices are compliant with the law. Looking ahead to anticipate and take steps to prevent potential liability issues is highly important. Employers further need to ensure that new policies and practices are properly implemented and routinely updated as new changes in the law continue to unfold.
For further information about how to comply with the new mental health standards, please contact David G. Newman, Q.C. at newman@pitblado.com or phone 956-3521.
PitbLAWg may be AWOL on January 18, 2012.
In a USA Today article “TwitPic, WordPress to go dark for online SOPA protest” Yamiche Alcindor reported that WordPress, along with other websites will not available on Wednesday January 18, 2012 to protest the proposed US legislation, Stop Online Piracy Act and the Protect Intellectual Property Act.
WordPress is the host site for PitbLAWg. If WordPress is not available then PitbLAWg will not be online for the day. However, we expect that WordPress and PitbLAWg with be back up and running on Thursday January 19th.
PitbLAWg takes no position on the proposed legislation or on the blackout. Thanks for following PitbLAWg and we hope to see you back on January 19th.
Expansions of the Concept of Latent Defects in Residential Real Estate Transactions
A purchaser of residential real estate closes the transaction, moves in and then subsequently discovers that there is a convicted pedophile living across the street. The new purchaser has a young family living with him. Is the existence of the neighbouring pedophile a “latent defect” under real estate contract law sufficient to enable the purchaser to reverse the transaction and/or sue his vendor for damages? Recently, this question arose on a preliminary motion before an Ontario court. The Court’s consideration of the relevant factors and review of the law of latent defects is interesting. If you want to find out more, please click here.
Canada Not-for-profit Corporations Act takes effect October 17, 2011
If you are involved with a federally incorporated charity or non-profit corporation, you need to know that the law has recently changed and that you must take steps to address this. To learn what is required and how this change in the law will affect your organization, take a look at the PitbLAWg post by Adam Herstein, or the recent Whiteboard session by Bradley Madison.
Manitoba Franchises Regulation – Public Consultation
Since becoming the fifth jurisdiction in Canada to adopt franchise legislation with the passage of The Franchises Act (the “Act“) on June 17, 2010, the Manitoba Government has been developing the Franchises Regulation which has been released this week for public consultation and may be reviewed here . The Act will come into force on a date determined by proclamation after the Regulation is finalized.
The Manitoba Act and Regulation are based on the Uniform Law Conference of Canada Model Act and closely follow legislation in other provinces. See my previous PitBlawg post on the Act.
The Act provides that potential franchisees must receive adequate information before making an investment decision in a franchised business by requiring a franchisor to provide a disclosure document to a franchisee before the franchise agreement is signed. The Regulation provides for the details of the franchise information to be included in the disclosure document.
Franchisors will be pleased to note that the Regulation facilitates the use of a disclosure document prepared for other jurisdictions by prescribing contents closely following the disclosure document requirements of the other jurisdictions inCanada. In addition, a “wrap around” concept is included in the Regulation whereby a disclosure document simply needs to include any supplementary information required by the Act or Regulation in order to use an existing document from another jurisdiction inManitoba.
The Regulation also prescribes certain other matters relating to the disclosure document including the required risk warnings, financial statements, franchisor certificates, delivery methods, as well as restrictions on refundable deposits and certain exemptions.
The general public is invited to provide its feedback to the Government which will be considered for input into the preparation of the final Regulation. Written comments must be received by the Government by no later than December 15, 2011.
New rules affect apartment conversions
Many property owners have been working all year getting apartment buildings registered as condominiums, but this will be much harder when new laws come into effect on November 7. The government hasn’t quite slammed the door on conversions, but almost. See my Whiteboard Session for more details.
What is Overtime, and who is entitled to it?
This is a fundamental principle of employment law that is vital to every employer – employee relationship. The respective rights and obligations of employees and employers relating to overtime are governed in Manitoba by the provisions of the Employment Standards Code. The basic principle is that where an employee works more than 8 hours in one day, or 40 hours in a week, employers must pay employees at the overtime rate, namely time and one-half of an employee’s regular rate of pay. There are exceptions to the rule that are also covered by the Code. Many employers have policies and practises that contravene the provisions of the Code and leave an employer liable to payments and potential fines and charges under the Code. For more information on this topic, please refer to my video post on the subject.
New Canada Not-for-profit Corporations Act coming into force
If you’re a federally-incorporated corporation without share capital, keep reading.
Federally-incorporated corporations without share capital (i.e., not-for-profit corporations) that were created by Letters Patent issued under the Canada Corporations Act (the “CCA“) will have three years to make changes that are required by the introduction of the new Canada Not-for-profit Corporations Act (the “CNCA”). The CNCA, which comes into force on October 17, 2011, represents a much needed overhaul of the CCA, which, having been passed in 1917, struggles to reflect modern corporate governance practices (what’s “e-mail”?).
What does this mean to you? If you’re responsible for a federally-incorporated corporation without share capital, you must file Articles of Continuance to bring the corporation under the CNCA (or a similar provincial corporate law) by October 17, 2014. You will also have to review your corporate by-laws and make whatever changes are necessary to comply with the CNCA.
There is plenty of time to prepare for the new CNCA, and that’s a good thing, since there are a host of changes federally-incorporated corporations without share capital can make under the new law, in addition to the changes they must make. For example, the new law will permit flexible new rules for member meetings. Under the CNCA, these meetings may be held electronically. Members may also be permitted to transact business by absentee voting, or without a meeting at all, as long as each member signs a resolution concerning the business to be transacted.
The point is, the new CNCA provides many opportunities to improve governance practices, but you’ll be required to do some front-end work (such as revising your corporation’s by-laws) if you’d like to take advantage of these new features.
That’s where we come in. We’ve already studied the CNCA in detail, and we have a package for federally-incorporated corporations without share capital like yours that want to both comply with the law, and take advantage of the opportunities it offers. Interested in learning more? Contact Adam Herstein or Andrew Buck for additional details.
Should you incorporate Federally or Provincially?
If you are thinking about incorporating your business, you will have to decide whether to incorporate federally or provincially. It can often be difficult to discern which jurisdiction best serves the needs of your business. However, the following considerations may make the decision easier:
- Where will the corporation be conducting business? Federal corporations have the right to carry on business anywhere inCanadaunder their federal name, subject to extra-provincial registration requirements in each province and territory. Provincial corporations, on the other hand, are only permitted to carry on business in the province they are registered in. Therefore, if the corporation is registered inManitobabut wants to carry on business in Ontario, it must obtain an extra-provincial license before doing so. Some provinces have reciprocally eliminated the registration requirements, however. For example, corporations registered in Ontario and Quebec may conduct business in each other’s provinces without a license.
- Are there concerns that the directors of the corporation will not meet residency requirements? At least 25% of directors of federal corporations must be resident Canadians. Additionally, specific industries such as video and film distribution have a requirement that at least a majority of directors be resident Canadians. Manitoba requires at least 25% of directors to be residents of Canada. However, some provinces like British Columbia and Nova Scotia do not have residency requirements for directors.
- Is name protection for your corporation necessary? The corporate names of federal companies are given protection throughout Canada such that the particular name, or a confusing name, may not be used elsewhere in Canada. Provincial incorporation does not provide a comparable level of name protection since name protection is only afforded in the province of incorporation. Therefore, if your corporation will be carrying on business across Canada, it may be preferable to incorporate federally to guarantee that the same name can be used in every province.
The Cost of Smoking Just Went Up!
Legislators in Manitoba have taken another step in the fight to protect youth against the harms of tobacco use. Effective July 15, 2010, new legislation in Manitoba punishes people who smoke in a car while in the presence of an individual younger than the age of 16.
Under The Highway Traffic Amendment Act (Promoting Safer and Healthier Conditions in Motor Vehicles) (the “Act“), authorities may levy a fine of up to $1,000.00 against individuals who smoke in cars when children under 16 are present. The Act also bans smoking by children under 16 in a motor vehicle regardless of who else is present. The fine applies even if there is an open window, open sunroof or any other open feature on the vehicle that might be conducive to better ventilation. The Act applies to all lighted tobacco products.
If you needed another excuse to quit smoking, this is it!
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Authors
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Mark Wallace
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Philip Watts
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Brant Harvey
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Caroline Kiva
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Adam Herstein
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Andrew Buck
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Benjamin Hecht
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Bradley Madison
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Rob Giesbrecht
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Ned Brown
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Candace Everard Grammond
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Lori Dobbie
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Darryl Antel
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Andrew Ogaranko
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Michael Puchniak
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Bill Gardner
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Tracey Epp
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Richard Buchwald
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Ron Greasley
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Administrator
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Douglas G. Ward, Q.C.
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Brian Bowman
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Courtney Chambers
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Bruce King
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newmandavidg
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