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Category Archives: Employment and HR

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Retail Sector in the Crosshairs of the Changing Workplaces Review Final Report: 10 Ways Retailers Could Be Impacted

Posted in Employment and HR, Franchising, Retailing

Premised on the theory that vulnerable workers and precarious employment exists in Ontario and needs to be addressed, the Final Report of the Changing Workplaces Review contains 173 recommendations, many of which focus specifically on the retail sector.  Below we identify ten recommendations that are likely to have a significant impact on retailers.

As previously mentioned on this blog, the Government of Ontario has now released the Final Report of the Changing Workplaces Review, which recommends a number of changes to Ontario’s Employment Standards Act, 2000 (“ESA”) and Labour Relations Act, 1995 (“LRA”). The Final Report specifically identifies the … Continue Reading

Changing Workplaces Review – Final Report: Potential Impact on Franchises

Posted in Employment and HR, Franchising

The Final Report has just been released for the Changing Workplaces Review, containing recommendations for legislative changes to Ontario’s Employment Standards Act, 2000 and Labour Relations Act, 1995.  A number of changes are either specific to franchises or may have an impact depending on the sector of the franchise and the way the franchise operates. Here we have summarized recommendations that are most relevant franchisors.

Recommendations concerning the Ontario Labour Relations Act, 1995 (“LRA”):

  1. Broader Based Bargaining: The Final Report recommends that the Ontario Labour Relations Board be given certain powers to implement a model of centralized bargaining,
Continue Reading

The Ongoing Pursuit of Accessibility in Ontario – Amendments to the AODA Effective July 1, 2016

Posted in Employment and HR, Legislation

On McCarthy Tétrault LLP’s Ontario Employer Blog, Kate McNeill-Keller published an article highlighting the recent amendments to the Accessibility for Ontarians with Disabilities Act, 2005, which may be of interest to readers of the Consumer & Retail Advisor blog. These amendments intend, in particular, to align the requirements of the Customer Service Standards with those set out in the Integrated Accessibility Standards.… Continue Reading

Takeaways – McCarthy Tétrault’s 6th Annual Consumer Products and Retail Summit

Posted in Branding, Competition, Distribution, Employment and HR, Events, Franchising, Real Estate, Retailing, Shopping Centres

McCarthy Tetrault’s 6th Annual Consumer Products and Retail Summit was held on February 25, 2016. Here are our key takeaways from the Summit, including practical tips from each of our topics:

Trends and Lessons Learned from Recent Retail Restructurings
Katherine Forbes and Mirella Pisciuneri, Richter Advisory Group

  • E-commerce is here to stay and is key to success, but only as part of a strategy combined with ‘bricks & mortar’ to create a customer experience
  • Vertical integration and comprehensive merchandise planning are critical for reducing costs and improving profit margins
  • Make the most of available consumer profile information, but be mindful
Continue Reading

Doing Business in Canada: Read the latest updates to our popular guide

Posted in Acquisitions, Canadian Market Entry, Employment and HR, Franchising

McCarthy Tétrault’s Doing Business in Canada is an indispensable reference tool for lawyers and business persons regarding the legal aspects of establishing or acquiring a business in Canada. The newest edition reflects legislative changes including:

  • Canadian anti-spam legislation (CASL)
  • updates on investment thresholds related to the Competition Act and Foreign Investment laws
  • Supreme Court decisions and legislation affecting copyrights
  • new information for employers regarding unjust dismissal complaints
  • updates on anti-treaty shopping measures introduced in 2014

We encourage you to consult one of our lawyers to gain a more comprehensive analysis of the legal implications of your proposed investment.

Download the Continue Reading

Amendments to the Guarantees Acknowledgment Act (Alberta) and Its Impact on Franchise Transactions in Alberta

Posted in Employment and HR, Franchising, Legislation, Retailing

Effective April 30, 2015, the new Notaries and Commissioners Act (“NCA”) comes into force in Alberta. As discussed in the newsletter dated April 20, 2015, the NCA contains certain consequential amendments to the Guarantees Acknowledgment Act (Alberta) (the “Act”). Since franchise agreements frequently require the principal of a corporate franchisee to provide a personal guarantee of the franchisee’s obligations under the franchise agreement, these amendments will impact many franchise transactions in Alberta.

The amendments provide that:

  1. an individual providing a guarantee must now appear before an active practicing lawyer, instead of a student-at-law or a notary
Continue Reading

Grocery Store Employee Bears Cost of Refusing to Work on Sunday

Posted in Employment and HR

The following post by Daniel Pugen on our Ontario Employer Advisor Blog may be of interest to our readers: Grocery Store Employee Bears Cost of Refusing to Work on Sunday.

The post discusses a retail employee’s statutory right to refuse to work on a Sunday under the Employment Standards Act (Ontario) and that this right cannot be used by an employee as a means to create a preferred shift schedule with no loss of pay.… Continue Reading

The Duty to Accommodate in a Retail Environment: Sorry but I can’t help you with your purchase, I’m being accommodated by my employer

Posted in Employment and HR

What steps must an employer take in order to accommodate an employee with a disability/injury in a retail environment? As discussed by Daniel Pugen in the  Ontario Employer Advisor, the Human Rights Tribunal has recently found that an employer’s duty to accommodate has limits, and that in a retail environment, physical restrictions which impact customer service may not have to be accommodated.… Continue Reading

Ministry of Labour “Rings Up” $240,000 from Retail Inspection Blitz

Posted in Employment and HR

The following post by Daniel Pugen on the Ontario Labour and Employment blog may be of interest to readers of this blog: Ministry of Labour “Rings Up” $240,000 from Retail Inspection Blitz

A Ministry of Labour (“Ministry”) inspection is never a pleasant experience for employers. Ministry inspectors have very broad powers to enter the workplace and inspect company documents to ensure compliance with the Employment Standards Act, 2000 (“ESA”) or the Occupational Health and Safety Act (“OHSA”). Sometimes these inspections are random.  Sometimes they are initiated by an employee/union complaint. Most of the time, an employer is not aware or … Continue Reading

When is it Unlawful for a Retailer to Shut Down a Store?

Posted in Employment and HR, Retailing

Many retailers in Canada and across the United States have been following the long-running saga of North America’s first unionized Wal-Mart, which had been located in Jonquière, Quebec.  The store was successfully unionized in 2004, but was permanently shut in 2005 on the very day an arbitrator had been appointed as part of the collective bargaining process.  Since then, former employees and their union have pursued various avenues seeking a legal determination that the closure was a violation of Quebec’s Labour Code or was otherwise unlawful.  After an unsuccessful trip to Canada’s Supreme Court in 2009, in a recent decision, … Continue Reading

The Tort of Intrusion Upon Seclusion Meets Class Action Certification: Part I

Posted in Corporate Matters, Employment and HR

In Evans v Bank of Nova Scotia (“Evans”)[1], the Ontario Superior Court certified a class action proceeding for allegations concerning a breach of privacy rights through the tort of intrusion upon seclusion. This decision set a precedent for the low bar of certification in class actions concerning breaches of information privacy, which may be of some concern to retailers and consumer products distributors that handle consumer personal information.

The Case

Justice Smith heard a motion in Evans to certify class proceedings by plaintiffs claiming that the Bank was vicariously liable for the actions of an employee … Continue Reading

Amendments Regarding the Temporary Foreign Worker Program

Posted in Acquisitions, Employment and HR, Franchising, Transactions

On December 31, 2013, a new set of amendments to applicable legislation came into force regarding the Temporary Foreign Worker Program.

The changes include requirements that employers:

  • complete a new form of labour market opinion (LMO) application;
  • keep copies of any documents pertaining to compliance with conditions prescribed by the Immigration and Refugee Protection Regulations (IRPR) for six years;
  • demonstrate information they provided in an LMO application was accurate; and
  • make “reasonable efforts” to ensure that the workplace is free of abuse.

The changes, which are generally aimed at protecting vulnerable employees, are also of significance to businesses considering mergers … Continue Reading

Fashion Law and Business: Brands & Retailers

Posted in Branding, Corporate Matters, Employment and HR, Retailing

For those interested, Fashion Law and Business: Brands & Retailers by Lois Herzeca and Howard Hogan was recently published, and is available for purchase here.

The book unravels the complexities of the global fashion industry, and provides guidance on the wide range of legal and business issues faced by fashion industry participants, including designers, suppliers, manufacturers of apparel and accessories, and retailers. It covers the following topics:

  • the considerations involved in starting a company in the fashion industry, including developing a business plan, determining the form and structure of the legal entity, and obtaining financing
  • how patent, trademark and
Continue Reading

The Ministry of Labour is Coming for Retailers: 5 Common ESA Violations

Posted in Employment and HR, Retailing

The following Ontario Employer Advisor blog post by Daniel Pugen my be of interest to readers of this blog:

The Ministry of Labour is Coming for Retailers: 5 Common ESA Violations

The Ministry of Labour (MOL) conducts inspections to ensure compliance with the Employment Standards Act, 2000 (ESA). The MOL targets employers in (as they put it) “sectors where there is a history of employment standards violations and where vulnerable workers are employed.” Thankfully, at least the MOL announces the targeted sector so that employers can prepare. This time, the target is the retail industry. Read more.… Continue Reading

Manitoba Joins the Ranks of Other Provinces in Enacting its own Private Sector Privacy Legislation

Posted in Employment and HR

The Government of Manitoba recently enacted the Personal Information Protection and Identity Theft Prevention Act (PIPITPA) to regulate the collection, use and disclosure of personal information by the private sector in Manitoba. The statute has not come into force, but this enactment is momentous, as it will enable Manitoba to join the ranks of Alberta, British Columbia and Quebec, which all have their own private sector privacy legislation that is “substantially similar” to the federal Personal Information Protection and Electronic Documents Act (PIPEDA). Manitoba is also the first province to move in this direction with an all‑encompassing private sector law … Continue Reading

Last Call for Comments to the BCLI

Posted in Employment and HR

September 30, 2013 marks the deadline for comments on the British Columbia Legal Institute’s “Consultation Paper on a Franchise Act for British Columbia” (the “Consultation Paper”).  The Consultation Paper was published earlier this year, and recommends the implementation of franchise legislation in B.C.  This legislation, which will encompass provisions on disclosure, the duty of fair dealing, rights to rescission, and damages for misrepresentation, will impose significant statutory obligations on franchisors.  For a summary of the BCLI’s tentative recommendations to the B.C. Legislature, click here (insert hyperlink to first blog post).

Interested parties have an opportunity to contribute to this … Continue Reading

Surveillance by Union Allowed

Necessary for Investigation of Replacement Worker Violations

Posted in Employment and HR, Retailing

The following British Columbia Employer Advisor post by Earl Phillips may be of interest to readers of this blog:

Surveillance by Union Allowed

Two different panels of the BC Labour Relations Board have made findings in favour of a union’s covert video surveillance at the IKEA store in Richmond, BC. The store has operated behind a picket line since May 13. Read more.… Continue Reading

Five Employment Issues Facing Retailers

Posted in Employment and HR, Retailing

The following Ontario Employer Advisor blog post by Daniel Pugen may be of interest to readers of this blog:

Five Employment Issues Facing Retailers

I am fortunate in my practice to work with clients in different industries, ranging from healthcare and social services to traditional manufacturing. Although employment laws generally apply to all industries in much the same way, there are usually certain issues that some industries face more than others. This is very true of many clients I assist in the retail industry. Read more.

This post was republished in the August 2013 issue of the Canadian Labour Continue Reading

Not a Discriminatory Denial of Service

Retailer Could Not Have Known of Disability

Posted in Employment and HR, Retailing

“Where a disability is not obvious to a service provider, it is not necessarily discriminatory to enforce a neutral rule grounded in considerations of security or safety … or sanitation.”

That was the conclusion of the BC Human Rights Tribunal in a case involving Shoppers Drug Mart (2013 BCHRT 174) where a customer was asked for security reasons to lower his hoodie in the store. The customer claimed that wearing a hoodie was related to his depression, but he didn’t tell the store that, and there was no other way for the store to know that there might … Continue Reading

Top 5 Public Holiday Questions – Part II

Posted in Employment and HR

The following Ontario Employer Advisor blog post by Daniel Pugen may be of interest to readers of this blog:

Top 5 Public Holiday Questions – Part II

For the May long weekend, I posted the top 5 public holiday questions that clients have asked me over the years.  Well, another long weekend is upon us and, yes, there are more questions that I am tasked with answering. Below are 5 additional public holiday questions and answers under the Employment Standards Act, 2000 (ESA). Read more.… Continue Reading

Top 5 Public Holiday Questions

Posted in Employment and HR

The following Ontario Employer Advisor blog post by Daniel Pugen may be of interest to readers of this blog:

Top 5 Public Holiday Questions

The May long weekend is before us. The weather is great, the LCBO averted a labour disruption, and I suspect that traffic may be worse than usual getting out of the city. In honour of the long weekend, I have set out below the top 5 questions I am asked about public holidays under the Employment Standards Act (ESA): read more.… Continue Reading

Employee Notice Period Greater than Length of Service!

Posted in Employment and HR

The following Ontario Employer Advisor blog post by Daniel Pugen may be of interest to readers of this blog:

Employee Notice Period Greater than Length of Service!

Like many management side labour lawyers, I often advise employers and their human resources professionals on the appropriate amount of notice or termination/severance pay an employee should receive upon dismissal without cause. I often remark that there is no “rule of thumb” or formulaic approach. Instead, in determining an employee’s notice period at common-law, the Courts have listed a number of factors to consider, including an employee’s age, length of service, position, compensation … Continue Reading

47 Recommendations on Employment Standards and Health and Safety

Posted in Employment and HR

The following Ontario Employer Advisor blog post by Daniel Pugen may be of interest to readers of this blog:

47 Recommendations on Employment Standards and Health and Safety

On April 3, 2013, the Law Reform Commission of Ontario released a report (all 176 pages), Vulnerable Workers and Precarious Work: Final Report – December 2012. The report is, in essence, a policy-heavy document reflecting the Commission’s views on how the Ontario government can better “respond to the challenges faced by vulnerable workers.” The Commission came up with a list of 47 “recommendations” dealing with legislative and policy reform of the … Continue Reading

Ontario Government Introduces Leaves for Caregivers

Posted in Employment and HR

The following Ontario Employer Advisor blog post by Daniel Pugen and Benjamin Aberant may be of interest to readers of this blog:

Ontario Government Introduces Leaves for Caregivers

On March 5, 2013, new Ontario Labour Minister Yasir Naqvi introduced Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2013 (Bill 21). If passed, Bill 21 would create three new unpaid leaves of absence under the Employment Standards Act, 2000 (ESA): Family Caregiver Leave, Critically Ill Child Care Leave and Crime-Related Child Death and Disappearance Leave. As previously reported, the Government introduced similar amendments to those proposed in … Continue Reading