Important Tips for Employers Hiring Foreign ... - Stewart McKelvey

Atlantic Employers’ Counsel
LEGAL DEVELOPMENTS OF INTEREST TO BUSINESS IN ATLANTIC CANADA
Fall 2011
Editor:
Court of Appeal Upholds Random
Alcohol Testing in Inherently Dangerous
Workplace
Clarence Bennett
Fredericton Office
506.444.8978
cbennett@stewartmckelvey.com
In this issue
Court of Appeal Upholds Random Alcohol
Testing in Inherently Dangerous Workplace
Penalties for Employer Withholding the Pay of
Foreign Workers
Notice of Dismissal to Employees on Maternity
Leave
Decision to Terminate Based on Business
Reasons, not Complaints regarding Safety
Employer’s Conduct During Dismissal Leads to
High Award and Costs
Reasonable Accommodation Does Not Require
Placement in Dream Job
Past Conduct may be Considered Outside
Limitation Period if Similar in Character
Business Immigration Update: Important Tips for
Employers Hiring Foreign Workers
On July 7, 2011, the New Brunswick Court of Appeal released its decision in
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp
& Paper, Limited, in which it answered the question of whether it is necessary for an
employer to prove the existence of a pre-existing alcohol problem in the workplace before
it can institute a policy of random alcohol testing of its safety-sensitive employees.
Facts
In 2006, the employer unilaterally adopted a workplace policy which included mandatory
random (without cause) alcohol testing, by breathalyser, for employees holding safetysensitive
positions in its kraft pulp mill. A positive result (a blood alcohol level greater than
0.04%) constituted a violation of the policy and resulted in the imposition of disciplinary
measures to be determined on a case by case basis.
Shortly after the adoption of the policy, the grievor (who, as a millwright, occupied a
safety-sensitive position), was randomly tested. The grievor refrained from drinking for
religious reasons, so, not surprisingly, the test revealed a blood alcohol level of zero. The
union nevertheless filed a policy grievance, challenging the “random” aspect of the policy
as a violation of employees’ privacy rights.
Arbitration Decision
The question put to the arbitration board was whether the random alcohol testing portion
of the employer’s policy was reasonable. The majority of the board concluded that to
establish reasonableness, the employer had to demonstrate that a sufficient risk existed
to justify the policy by adducing sufficient evidence of a pre-existing alcohol problem in
the workplace, unless the industry in question fell within the category of “ultra-dangerous”
or “ultra-hazardous”, as would a nuclear plant, an airline, a railroad, a chemical plant or
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Competitive Intelligence
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2010 NBQB 16G

like enterprise. On the basis of the employer’s evidence
that the normal operation of the mill carried with it the
risk that certain malfunctions could have far-reaching
repercussions, the majority of the board concluded that
the mill was, in fact, a “dangerous work environment”, but
did not accept that the mill fell within the “ultra-dangerous”
category.
The majority therefore examined the evidence relating to a
pre-existing alcohol problem in the employer’s workplace,
and concluded that it failed to establish “any significant
degree of incremental safety risk attributable to employee
alcohol use”. The majority also considered the relatively
low percentage of employees tested (10% per annum) and
the absence of positive test results to date, and reasoned
that little or no advantage accrued to the employer through
the adoption of random alcohol testing. The majority
therefore found that the random alcohol testing provisions
of the employer’s policy were unreasonable.
Decision on Judicial Review – New Brunswick
Court of Queen’s Bench
On the employer’s application for judicial review, the
majority of the board’s decision was set aside by the
Court of Queen’s Bench, and the union’s grievance was
dismissed. The Court determined that the majority’s
decision was unreasonable in that it required a history of
accidents in order to justify random alcohol testing, which
effectively meant that an employer would have to wait until
a catastrophe occurred before being able to take proactive
measures to prevent a recurrence. The Court also found
that the majority’s distinction between a “dangerous”
workplace and an “ultra-dangerous” one was unreasonable.
Court of Appeal Decision
The Court of Appeal restricted its comments to the
consideration of the requirement for safety-sensitive
employees to submit to random alcohol testing, in light of
the distinction between the testing for drugs and for alcohol.
The Court noted that the jurisprudence dealing with drug
testing has been more problematic than cases dealing with
alcohol testing, because the methods employed in drug
testing cannot measure present impairment – a positive
test simply means that the employee has taken drugs in the
past. In contrast, alcohol testing is able to detect on-the-job
impairment and minimize the risk of impaired performance.
The Court also noted that alcohol testing by breathalyser
has always been regarded as minimally intrusive.
In defence of the majority of the arbitration board’s decision,
the appellant union took the position that (1) the arbitral
jurisprudence has overwhelmingly rejected mandatory,
random and unannounced drug and alcohol testing, and
that (2) sufficient evidence of a pre-existing drug or alcohol
problem in the workplace is necessary to justify a testing
policy, unless the workplace is an ultra-dangerous one. The
Court of Appeal disagreed with the union’s characterization
of the arbitral jurisprudence, and noted that while random
drug testing has met with resistance, random alcohol testing
gained early acceptance once testing was to be performed
by breathalyser and was to be restricted to employees
holding safety-sensitive positions. Significantly, the Court
also held that evidence of a pre-existing alcohol problem in
the workplace is unnecessary to justify an alcohol testing
policy once the employer’s work environment is classified
as inherently dangerous (i.e., not “dangerous” versus “ultradangerous”,
as the latter classification does not exist). The
Court therefore determined that the central question to
be answered was whether the employer’s workplace was
inherently dangerous.
The Court held that the majority of the arbitration board’s
finding that the kraft pulp mill was a “dangerous work
environment” satisfies the test of inherently dangerous. In
further support of the mill’s inherent dangerousness, the
Court referred to the mill’s pressure boiler with a high potential
for explosion, the potential impact on the environment of a
major catastrophe such as a chemical spill, the intra-city
location of the mill and its proximity to the St. John River
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and the Bay of Fundy, and the potential for “catastrophic
failures” of incorrect configuration of plant control systems
by certain employees. The Court concluded that due to the
inherent danger of the employer’s operation, the employer
did not have to adduce evidence of an existing alcohol
problem in the workplace, let alone sufficient evidence of a
“significant problem”. For this reason, the Court of Appeal
agreed with the decision of the Court of Queen’s Bench
to set aside the decision of the majority of the arbitration
board, and to dismiss the grievance.
What This Means for You
This decision is good news for employers. It confirms that
employers operating inherently dangerous workplaces
need not wait for an alcohol-related accident or nearmiss
to implement mandatory random alcohol testing, by
breathalyser, of employees occupying safety-sensitive
positions. However, it is important to keep in mind that drug
testing is treated differently than alcohol testing by courts
and arbitrators, in light of the limitations of drug testing in
detecting present impairment.
Further, employers need not concern themselves with
whether their operations are ‘dangerous enough’ to fit into
an “ultra-dangerous” category in order to justify taking
proactive measures to prevent alcohol-related accidents in
the workplace, as such a category does not exist in the
jurisprudence.
Please note that any discipline imposed on an employee
as a result of a positive drug or alcohol test must be
administered in accordance with the applicable collective
agreement (if any), and must comply with the employer’s
duty to accommodate those with disabilities, if drug
or alcohol addiction constitutes a disability under the
applicable human rights legislation in your jurisdiction.
The employer in this case was represented by William
B. Goss, Q.C. and Melissa M. Everett Withers. Leave to
appeal to the Supreme Court of Canada has been filed by
the union.
Melissa Everett Withers
Fredericton Office
506.444.8974
meverettwithers@stewartmckelvey.com
Penalties for Employer
Withholding the Pay of
Foreign Workers
The Prince Edward Island Employment Standards Board
has come down hard on an employer accused of wrongfully
withholding pay from foreign workers.
The employer, Mariner Seafoods Inc. (“Mariner”) hired
foreign workers from Thailand to work in a seafood
processing facility in Montague, Prince Edward Island.
Forty-five foreign workers filed employment standards
complaints alleging that Mariner:
• During the 2009 season, failed to return about $1,500.00
per employee that had been deducted for individual
savings accounts; and
• During the 2010 season, withheld about 10 hours pay
each week.
At a hearing, six foreign workers gave evidence. They
testified that, in 2009, Mariner made deductions from
their pay to the tune of $75.00 a week. First, the workers
were told this deduction was to pay for their air fare. After
learning that Mariner was not permitted to make deductions
for air fare, they were advised that the deductions were
for English translation. Later they were advised that the
deduction was for a savings account.
Mariner testified
that the monies were returned to the employees in cash,
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efore they returned to Thailand in December 2009. The
employees testified they did not receive reimbursement and
they did not sign the receipts that the employer produced
at the hearing.
Murray Murphy
Charlottetown Office
902.629.4558
mmurphy@stewartmckelvey.com
The foreign workers alleged that when they returned for the
2010 season, they were promised that deductions would
not be made from their pay. Soon thereafter, they found
that they were being short changed about 10 hours per
week.
The Employment Standards Board accepted the workers’
evidence. The employer called no corroborating witnesses,
its evidence was inconsistent and contradictory, and the
employer offered no less than three different reasons why
pay was being deducted. The Board found it highly unlikely
that a business would make cash payments to employees
in excess of $60,000.00.
The Board sanctioned Mariner for discriminating against
eleven of the workers. When the employer learned
about the complaints he told these employees they were
let go and they had to be out of their employer-supplied
accommodations within 24 hours.
Ultimately the Board ordered Mariner to pay compensation
in excess of $150,000.00.
This is one of the first occasions that a group of foreign
workers have successfully prosecuted an employment
standards complaint on Prince Edward Island. The
complainants were not proficient in English and the
Board provided a translator for the proceedings. The
case is also noteworthy as despite documentation
produced by the employer, the Board essentially did
not find the employer to be credible.
Notice of Dismissal to
Employees on Maternity
Leave
A recent decision of the New Brunswick Court of Queen’s
Bench released on September 28, 2011, Donnelly v Kings
Landing, indicates that reasonable notice and maternity
leave cannot run concurrently.
Background
In 2010, Donnelly, a non-union marketing manager, grieved
a lay-off notice she received while on maternity leave,
pursuant to the Public Service Labour Relations Act. She
claimed that the notice was ineffective at law on the basis
that a person on maternity leave could not be laid off until
the end of her maternity leave, and that her employer
discriminated against her on the basis of sex.
Adjudication
Both parties agreed that a Grievance Adjudicator had
jurisdiction to adjudicate a complaint of sex discrimination
under the New Brunswick Human Rights Act as well as the
claim for notice and an adjudicator was appointed by the
Labour and Employment Board to consider the grievance.
With regard to the allegation that the notice was ineffective
at law, the adjudicator did not consider the requirements of
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the common law but found that the Employment Standards
Act, did not preclude the lay-off of an employee who is on
maternity leave as long as the lay-off does not arise from
pregnancy or the maternity leave alone. In this case, the
adjudicator found that there was evidence to support the
conclusion that the employer’s decision to restructure
Donnelly’s position was made for good faith bona fide
business reasons. With regards to the claim of sex
discrimination, the adjudicator stated:
Judicial Review
Donnelly sought judicial review of the adjudication decision
with respect to the question of whether proper common law
notice was provided. Donnelly argued that if the purpose
of reasonable notice was to provide an employee with an
opportunity to find adequate alternate employment, the
notice did not serve this purpose as she could not look for
alternate employment and take care of her newborn twins
at the same time.
To accept that evidence as to the timing of the
notice during a maternity leave is sufficient to ground a
discrimination complaint would serve only to undermine
the structure of human rights legislation. Every person
has the characteristics protected by the human rights
legislation; that is, every person has a race, colour,
national origin, ancestry, place of origin, marital status,
sexual orientation, sex, etc. If, without more, the fact
of receiving notice of lay off during a maternity leave is
sufficient per se to ground a complaint of discrimination,
it should suffice to justify a complaint of discrimination on
multiple grounds of race, etc. While discrimination
on one of the enumerated grounds need not be the only
factor in a decision alleged to be discriminatory, it must
be a factor. To repeat, there is no evidence that it
was even a factor. There is simply no evidence of direct
intentional discrimination or of adverse effect
discrimination.
With reference to case law from British Columbia that
has found that lay-offs during maternity leave constitute
discrimination, the adjudicator stated that “The statutory
law in B.C. is not the law in New Brunswick nor in Ontario;
perhaps, their law is better than our law but it is not our
law.” The grievance was dismissed on the employment
standards analysis without any examination of the common
law notice principles.
Justice Garnett of the New Brunswick Court of Queen’s
Bench determined:
Maternity leave is intended to give mothers time to care
for their babies without having to report to work. Notice
of dismissal is intended to give an employee a reasonable
amount of time to secure alternative employment. In
seeking that employment, the employee must be
prepared, if the opportunity arises, to go to work. A
mother on maternity leave is not required to go to work
therefore it cannot be said that she is both on leave
and on notice at the same time. The two concepts are
incompatible.
I find therefore that the notice to which Donnelly was
entitled cannot coincide with the leave to which she was
entitled.
What This Means for You
When considering terminating a pregnant employee, you
will have to keep this decision in mind. If notice cannot
coincide with maternity leave, more careful planning will be
required when downsizing if you attempt to provide working
notice or salary continuance.
In the present case, the employer attempted to “save
money” by relying on a period in which Donnelly would be
on EI for notice (the employer did not pay any salary while
an employee was off on maternity leave). The decision
would have been different if the employer decided to
provide pay in lieu of notice on her first day back.
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This decision may also have implications for employees on
different types of leave and these cases will require careful
consideration before providing notice in the normal way.
Nick Russon
Fredericton Office
506.443.0128
nrusson@stewartmckelvey.com
Decision to Terminate
Based on Business
Reasons, not Complaints
regarding Safety
Michelle Blanchard was terminated by her employer on
June 23, 2010. Blanchard was an environmental engineer
for Cobalt C.S. Company, a subsidiary of Irving Oil. Shortly
after her termination, Blanchard contacted the media
and alleged that her termination was because she had
complained about the president’s driving during a business
trip.
Blanchard was on a business trip from June 13 to 21, 2010
in Newfoundland and Labrador with two of her colleagues
in leasing and sales, Karen McMahon, Director of Program
Management, and Arthur Irving Jr., the Company President.
Blanchard claimed that Irving was speeding excessively
and talking on his cell phone while driving. She registered
her complaint with McMahon and her fellow employees
on the trip. She was terminated almost immediately
after returning from her trip and she concluded that her
termination was because of her complaint.
Blanchard filed a complaint with WorkSafeNB in May
2011, accusing Cobalt of firing her because of her safety
complaint, which she alleged was discrimination under
New Brunswick’s Occupational Health and Safety Act.
At the hearing, Cobalt’s evidence was largely uncontradicted,
establishing the following key points:
• Prior to the Newfoundland trip, Cobalt had decided that
it needed to restructure because of a significant decrease
in work. Part of the restructuring included the elimination
of one of four engineer positions. Blanchard was
identified for two main reasons: her performance
attitude and the fact that she was the highest paid of the
four engineers.
• The trip to Newfoundland was to inform Irving about
Cobalt’s properties in that province and Blanchard was
responsible to provide detailed information on each of
93 sites that the team intended to visit. Blanchard had
several weeks to prepare and additional resources
in order to ensure that she had sufficient information to
provide her opinion about the various sites.
• During the site visits, Irving posed several questions
to Blanchard for which she had either no answer or no
satisfactory answer. Blanchard’s supervisor testified that
Blanchard did not demonstrate any effort to find answers
to those questions for which she lacked information.
• At one point, Blanchard presented the wrong site plan
and, as a result, Irving was frustrated by both her lack of
answers and the inability to match up the details of the
site with a site plan.
• All the members of the team had a brief discussion about
the speed at which Irving had been driving; Blanchard,
in particular, expressed concern about Irving’s driving.
• That concern was relayed to the General Manager of
Cobalt who telephoned Irving to advise him of the
concern but did not provide him with the specific names
of who complained. The next day, Irving apologized to
the team.
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• There were discussions between the General Manager
and Irving about sending Blanchard home early because
she was not contributing in any meaningful way to the
site visits.
Rebecca Saturley
Halifax Office
902.420.3333
rsaturley@stewartmckelvey.com
The adjudicator concluded that he had “no hesitation in
concluding that [the complaint about Irving’s driving] was
not a factor” in Cobalt’s decision to terminate Blanchard’s
employment. In particular, he noted that the General
Manager of Cobalt did not know of Blanchard’s actual
involvement in the expression of safety concerns, only that
it was a team issue. Moreover, the decision to terminate
was made for sound business reasons, well in advance
of Blanchard’s complaint. He also concluded that the
company validly believed that Blanchard did not “meet the
performance standards expected of a senior professional”.
Although not relevant, the adjudicator also noted that “the
rate of speed alone may not always be the sole factor to
determine safety” and that “an absolutist approach to safety
and speeding is problematic”.
With respect to Blanchard’s comments to the media, the
adjudicator also noted that “parties are expected to respect
the role of the tribunal or court to adjudicate the matter by
not making statements about the matter to the media”. He
went on to say that Blanchard’s contact with the media in
advance of the hearing was “to be regretted”.
What This Means for You
Employers often face an uphill battle in discriminatory
action complaints, particularly when a safety complaint is
made around the time of a negative employment decision.
In this case, Cobalt was able to easily demonstrate that the
decision to terminate predated any safety complaint and
that the decision was based on solid business reasons.
Employers should ensure when terminating employees,
even in without cause situations, that there is adequate
documentation of the reasons why in order to defend
against any future (and likely unexpected) complaints.
Employer’s Conduct During
Dismissal Leads to High
Award and Costs
On October 21, 2011, the New Brunswick Court of Queen’s
Bench issued a wrongful dismissal award of 23 months’
notice and $15,000 in costs due to the employer’s conduct
during the dismissal.
Background
Michael Doran worked at the Fredericton Co-op from 1984
until 2009. At the time of his dismissal he was 46 years
old and was the Senior Grocery Supervisor. The employer,
however, took the position that Doran was not terminated
but had resigned.
The evidence from Doran was as follows.
On October 10, 2009, Doran met with the employer’s general
manager, Sheldon Palk at approximately 4 P.M. Doran
indicated to Palk that he felt that he deserved consideration
for promotion to the position of Grocery Manager, which
position was vacant at the time. In the absence of a
Grocery Manager, Doran had been performing most of
the responsibilities and tasks typically associated with that
position, and the grocery department had performed well
financially during this period. In response, Palk stated that
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he did not feel that Doran had the right qualities for the
Grocery Manager position. Doran was told by Palk that he
would not be considered for the position and instead, that
he planned to advertise for the position. Upon learning of
Palk’s position regarding his potential for promotion, Doran
stated to Palk that he would consider looking elsewhere for
a new job.
Doran next spoke with Palk on October 15, 2009, when Palk
paged him to come to his office. Upon Doran entering Palk’s
office, the first words spoken to the him by Palk were “so,
am I posting one job or two?” Importantly, Doran informed
Palk that he would be staying in his current position but
would be looking elsewhere for new employment. Palk then
told Doran that he would be posting the Grocery Manager
position as soon as possible.
On November 3, 2009, Palk again contacted Doran and
asked to speak with him. When he entered Palk’s office,
Doran was asked by Palk “so what have you decided”.
Doran informed Palk that he was willing to continue in his
current position but was looking elsewhere. At this point,
Doran alleged that Palk asked him if he would be “gone” by
the end of the month. Doran stated that he had “no idea” if
he would be gone by the end of the month, as he had not
yet applied for new employment, nor had he completed his
resume. According to Doran’s testimony, Palk replied that
he felt that it would be best if he did not continue working
at the co-op. Palk then asked Doran for his store keys,
which he immediately delivered after retrieving them from
his office. At the conclusion of the meeting, Palk stated to
Doran that his salary would be continued for four weeks as
severance, but stated that he was only required to pay the
Plaintiff for two weeks.
agreed that he would be gone by the end of November and
he simply paid him until the end of the month.
The Decision
The judge at trial did not find Palk to be a credible witness
and, in fact, determined that his evidence was not truthful.
The trial judge determined that the allegation that Doran
had quit was fabricated and, as a result, ordered costs
against the employer in the amount of $15,000, in addition
to awarding 23 months’ notice for wrongful dismissal.
What This Means for You
While Wallace damages are more difficult to attain in light
of the Supreme Court of Canada’s decision in Honda v.
Keays, bad faith conduct during a dismissal may still result
in stiff penalties at trial in the form of a discretionary order
of costs.
Richard Petrie
Fredericton Office
506.443.0155
rpetrie@stewartmckelvey.com
Palk told a different story, the important part of which was
that during the November 3, 2009 meeting, Palk maintained
that he did not terminate Doran but asked him if he would be
gone by the end of November. He then indicated that Doran
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Reasonable
Accommodation Does
Not Require Placement in
Dream Job
investigated the complaint and found that the Government
had made a reasonable effort to accommodate Riley.
The Commission concluded that the alternate position
proposed by the Government was reasonable in all of the
circumstances and, having made such a proposal, its duty
to accommodate Riley was discharged. The complaint was
therefore dismissed.
In Riley v. Government of Prince Edward Island, the
Supreme Court of Prince Edward Island issued an important
reminder to employers that the obligation to accommodate
employees with a disability does not mean that employees
have the right to be placed in the job that they most desire.
A reasonable proposal to accommodate cannot be rejected
simply because the proposal is not the one preferred by the
employee.
Facts
Riley suffered an injury to her right eye in 2003.
Notwithstanding her disability, Riley worked seasonally for
the Government of Prince Edward Island as a flag person
in 2003, 2004, 2005, 2006, and 2007. Before her work term
began in 2007, Riley informed the Government that she
wanted a job indoors because of her disability. Riley later
advised the Government that she would take her usual job
outdoors. The Government asked for proof from Riley that
she was able to perform her usual duties outside, but no
proof was provided. In 2008, the Government offered Riley
a different job working outside. Riley accepted the position,
but attempted to attach a number of additional conditions
to the job because of her disability. The Government did
not accept any of those conditions. When Riley did not
report for work at the start of her term, the Government
determined that its duty to accommodate Riley was at an
end.
Riley subsequently filed a complaint with the Prince
Edward Island Human Rights Commission, alleging
that the Government had discriminated against her by
failing to accommodate her disability. The Commission
Decision of the Court
Upon judicial review, the Court accepted that Riley had
a disability which interfered with her ability to work as a
flag person.
The Court also endorsed the well-known
principle that, once an employee establishes a disability,
the employer has a duty to accommodate that disability
by attempting to find other employment for the employee
or by modifying existing employment. However, the Court
emphasized that this duty to accommodate was not without
boundaries.
The Court observed that the search for accommodation is “a
multi-party inquiry” that also requires the employee to take
reasonable steps to facilitate accommodation. The Court
noted that employees cannot expect a perfect solution and
that, if an employer makes a proposal that is reasonable
in all of the circumstances, its duty to accommodate is
discharged when that proposal is turned down by the
employee. In other words, an employee cannot reject an
accommodation proposal simply because it is not the one
that he or she prefers:
While the employee seeking accommodation can
expect the employer to consider their current abilities
and to make a real effort to determine whether a job can
be filled by the employee or modified as accommodation,
the employee has no right to expect to be placed in
the position he/she most desires. Further, the employee
seeking accommodation cannot expect the employer
to infer what the employee’s abilities are. The employee
must inform the employer what he/she can and cannot
do and what types of accommodation are necessary.
9

The employee who fails to inform his/her employer of
his/her abilities and simply demands accommodation by
being placed in a particular job cannot sustain an
argument that the employer has failed to accommodate
his/her disability.
In the end, the decision of the Commission, which had
dismissed the complaint by Riley, was found to be
reasonable by the Court.
What This Means for You
This decision confirms that, while an employer must make
a real effort to accommodate an employee with a disability,
the employee has no right to expect to be placed in his
or her job of choice. Where the accommodation proposal
made by an employer is reasonable in the circumstances,
the employee cannot refuse that proposal and expect to
be placed in another position. As the Court observed,
accommodation is a collaborative exercise that imposes
duties and responsibilities on both employers and
employees.
Jonathan Coady
Charlottetown Office
902.629.4520
jcoady@stewartmckelvey.com
Past Conduct may be
Considered Outside
Limitation Period if Similar
in Character
In McConnell v. Brunswick News Inc., the New Brunswick
Court of Appeal confirmed that allegations of past
discrimination must be similar in character and occur with
sufficient frequency to establish a continuing contravention
and be considered outside of the limitation period.
Background
The employee, McConnell, began working with the Daily
Gleaner in 1965 as a newspaper delivery boy. After working
his way up through the ranks, his hours and responsibilities
increased and he eventually held a supervisor position.
The employee suffered from recurring episodes of major
depression and attempted suicide multiple times during his
employment. He had several periods of disability leave,
with the employer making attempts to accommodate him
upon his return to work each time. The employee was
ultimately terminated for poor performance and attitude and
received pay and benefits in lieu of working notice.
Stephen Carpenter
Charlottetown Office
902.629.4556
scarpenter@stewartmckelvey.com
Following termination, the employee filed a complaint with
the New Brunswick Human Rights Commission, alleging
that the termination was based on his mental disability and
thus was discriminatory. He also alleged that his employer
discriminated by failing to accommodate his disability
during the five years prior to his termination. The Board of
Inquiry dismissed the complaint, and held that the decision
to terminate the employee was completely unrelated to his
disability. The Board further held that all of the employee’s
allegations of discrimination, other than his termination,
were barred by a limitation period and therefore could not
be considered.
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The Court’s Decision
The Court affirmed the Board’s finding that the employee’s
allegations were outside the one year limitation period
and thus could not be considered. However, the Court
considered whether alleged discriminatory events that were
otherwise barred could be considered if they formed part of
a continuing contravention. The Court held that the Board
was correct in deciding that allegations of discrimination
must be similar in character and occur with sufficient
frequency to constitute a continuing contravention. The
conclusion that the employee’s dismissal was different in
character from the earlier events and therefore the events
could not escape the limitation provisions as being part of a
continuing contravention was within the range of acceptable
outcomes and considered reasonable.
What This Means for You
In many situations, a human rights complaint will not
allow employees to air every grievance in their history
with the company. However, you should be aware that
alleged discriminatory events, which are otherwise barred
by limitation periods, may be considered by the Court in
a subsequent discrimination complaint if the conduct is
similar in character and occurs with sufficient frequency.
Gordon Petrie, Q.C.
Fredericton Office
506.443.0150
gpetrie@stewartmckelvey.com
Ellen Oakes, Articled Clerk
Fredericton Office
506.444.8970
eoakes@stewartmckelvey.com
Business Immigration
Update: Important Tips for
Employers Hiring Foreign
Workers
New Requirements for Intra-Company
Transferees with Specialized Knowledge
New instructions from Citizenship and Immigration Canada
(“CIC”) may make it more difficult for intra-company
transferees to demonstrate specialized knowledge.
Moreover, the remuneration package offered to foreign
specialized knowledge workers transferred to Canadian
subsidiaries or affiliates will now be scrutinized more
carefully during the work permit application assessment
process.
The intra-company transferee work permit category
is a popular tool that multi-national companies use to
temporarily transfer eligible senior managers, executives
and specialized knowledge personnel to Canada from
abroad. It allows international companies to send qualified
employees to Canada for reasons such as improving
management effectiveness, expanding Canadian exports,
and enhancing the competitiveness of Canadian entities in
overseas markets.
The beauty of this type of work permit is that it allows for
streamlined processing, saving time and money, because
pursuant to subsection 205(a) of the Immigration and
Refugee Protection Regulations, intra-company transferees
do not require labour market opinion (“LMO”) confirmation
from Service Canada like most other foreign workers do.
The basis for this LMO exemption is that Canadians are
seen to benefit from increased mobility being afforded to
intra-company transferees.
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In response to a significant increase in the number of
intra-company transferee applications from individuals
purporting to be specialized knowledge workers following
cancellation of the facilitated work permit process for
information technology (“IT”) specialists last year, CIC
has issued new instructions on the assessment criteria
for specialized knowledge applications. In Operational
Bulletin 316, released on July 4, 2011, CIC clarified how its
policy guidelines regarding the assessment of specialized
knowledge applications will be applied. This Bulletin
provides guidance on the various assessment criteria and
is useful for Canadian employers considering bringing
foreign specialized knowledge workers to Canada as intracompany
transferees, particularly for roles in the IT industry.
How to Prove “Specialized Knowledge”
Operational Bulletin 316 confirms that in addition to the
general requirements for all intra-company transferees,
applications from specialized knowledge workers will also
be evaluated based on the following factors to assess
whether the applicant’s claim of specialized knowledge can
be supported:
• Education
If the job normally requires a degree or diploma, then
the foreign worker must have the necessary educational
credentials.
• Knowledge
As described in detail below, the foreign worker must
have specialized knowledge that is not commonly held
and relatively unique within the company and the
industry.
• Experience
The foreign worker must have a breadth of experience
with the foreign company and/or the respective industry
sufficient to support the claim of specialized knowledge.
Additionally, the National Occupational Classification
(“NOC”) system is used to evaluate the categorization of
the job that the foreign worker will be performing in
Canada. The position in Canada must be of a NOC
level that is similar to or higher than the worker’s position
in their home country, unless they can demonstrate that
an exceptional situation exists.
• Salary
The wage/salary range offered to the foreign worker
must be realistic in terms of the prevailing Canadian
wage level for the occupation and the geographical area
in question. The wage rate will also be considered as an
indicator of specialized knowledge such that applications
from lower-paid foreign workers may raise concerns
about the requisite level of specialized knowledge.
• Relevant training
The foreign worker is expected to demonstrate
completion of any specialized training or apprenticeship
that evidences specialized and unique knowledge.
• Supporting documentation
Extensive and well-prepared supporting documentation
should be included with this type of work permit
application to establish the fact that the foreign worker
meets both the general requirements for intra-company
transferees and has the requisite level of specialized
knowledge.
Immigration officers are instructed to
carefully review resumes, reference letters and
other supporting documents to ensure they support the
applicant’s claim of specialized knowledge.
How Specialized is “Specialized Knowledge”?
The threshold of what constitutes specialized knowledge
is quite high, and is arguably subjective. Consequently,
it is advisable to ensure that any employees who will be
applying for this type of work permit are equipped with
detailed application submissions and are well briefed
before submitting their application.
The Temporary Foreign Worker Manual published by CIC
describes specialized knowledge as “unusual and different
from that generally found in a particular industry”. Although
the knowledge need not be proprietary or unique, it should
certainly be uncommon.
The clarification provided in the
recent Operational Bulletin suggests that it is now more
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difficult than ever to make out a case for a specialized
knowledge work permit.
Specifically, CIC has indicated
that simply having knowledge of proprietary tools used
or developed by an employer is generally not sufficient
to trigger the issuance of an intra-company work permit.
Rather, a specialized knowledge worker must possess
(1) knowledge gained through extensive experience
that cannot be acquired in a short period of time, and (2)
complex knowledge that cannot be easily transferred to
others. Moreover, to be truly considered a specialized
knowledge worker for immigration purposes, an intracompany
transferee must be coming to Canada to work in
a position that is critical to the well-being or productivity of
the Canadian employer.
A Realistic Canadian Wage May Not be Enough
Operational Bulletin 316 clarifies that employers will no
longer be able to transfer specialized knowledge workers
to Canadian affiliates and continue to pay those individuals
the same compensation package they were paid outside
of Canada if it is below the Canadian wage rate for the
occupation in question. Although salary has always been
considered one of the indicia of specialized knowledge, in
practice salary amounts were not routinely requested or
considered in the assessment of specialized knowledge
until recently.
These days immigration officers at visa
offices, ports-of-entry and in-land CIC offices all require
salary information to process an intra-company transferee
application for applicants claiming specialized knowledge.
And, where applicants have previously worked in Canada,
it is not uncommon for them to be asked to provide proof
of the wages they have been paid for their work in Canada
to date.
This is a significant change for many employers because
the salary offered to intra-company transferee applicants
was not regularly assessed prior to the cancellation of the
IT workers program. Now, as noted, salary is considered
a much more relevant factor for assessing specialized
knowledge applications and will be stringently reviewed
by immigration officers. It should be noted that the level of
scrutiny appears to vary from officer to officer and office to
office. Also, Operational Bulletin 316 reminds immigration
officers that salary is only one of a series of factors to be
assessed.
Employers who are interested in ascertaining the salary
information that most immigration officers consult to assess
compensation in relation to specialized knowledge can visit
the Government of Canada’s Working in Canada website to
find salary ranges for specific occupations in a given area
of the country.
It is not uncommon for intra-company transferees to be paid
per diems to supplement their remuneration in recognition
of the added costs associated with living in Canada, which
can complicate the assessment of their salary. Please note
that Occupational Bulletin 316 confirms that non-cash per
diems paid for hotels, transportation, etc. directly by the
employer will not be considered in the evaluation of overall
salary. Only allowances paid in monetary form directly to
the employee will be included in the salary assessment.
What This Means for You
While CIC has not explicitly stated that the rigid prevailing
wage assessment to salary applied by Service Canada
in the LMO context will apply to the assessment of intracompany
transferee specialized knowledge applications, it
is recommended that the salary paid to the foreign worker
should be as close to the prevailing wage calculation as
possible.
Operational Bulletin 316 confirms that a much stricter
assessment of all the relevant factors will now occur
before a specialized knowledge work permit is issued.
Consequently, when transferring a specialized knowledge
worker to Canada, employers should ensure the employee
being transferred is well prepared to demonstrate that s/he
satisfies each of the relevant factors. This type of preparation
should be done well in advance of the employee’s arrival in
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Canada to confirm the individual is eligible for this type of
work permit and to minimize the risk that the application will
be refused.
provide wages, working conditions, and/or an occupation
promised in the job offer may result in ineligibility to
participate in the TFWP for a period of two years.
Other Immigration Changes Affecting
Employers
New Employer Declaration Form
CIC recently released a new Employer Declaration form
(IMM 5658) that should be completed by employers of
foreign workers applying for work permits that do not
require an LMO. This new form is difficult to locate and
is most easily found by conducting a search of CIC’s
website for the form number. Although currently this form
is not mandatory, it is best practice to ensure that all LMOexempt
work permit applicants have a properly completed
Employer Declaration form (IMM 5658) to submit with their
application. Providing employees with a completed and
signed Employer Declaration could help to avoid work
permit processing delays.
The purpose of this new form is to provide employer
information to CIC and Canadian Border Services Agency
in order to assist with the processing of work permits
under the Temporary Foreign Worker Program (“TFWP”).
The declaration made by employers who sign this form
is intended to assist immigration officers in assessing the
genuineness of the job offer, and more specifically whether
the job offered to the foreign worker has been made by
an employer who is “actively engaged” in the business -
one of the new requirements introduced by the regulatory
amendments to the TFWP that came into effect April 1,
2011.
By signing the declaration form, employers confirm they
have read and understood their obligations under Canadian
immigration law and policy and specifically confirm their
understanding that employer non-compliance in failing to
The responsibilities and penalties for employers mentioned
in the Employer Declaration are a reflection of the regulatory
changes made to the TFWP earlier this year which are
outlined in the “Business Immigration Update” featured
in the Spring 2011 issue of Atlantic Employers’ Counsel.
As explained in further detail in that article, employers
should be aware that failure to provide a foreign worker
with the agreed-upon wages, working conditions and
occupation could not only result in them being banned from
using the TFWP for two years; non-compliance can also
cause employers to have their name added to a publically
accessible “blacklist” of ineligible employers maintained on
CIC’s website.
New Bar-Coded Application Forms for
Temporary Overseas Applications
Earlier this year CIC introduced bar-coded application
forms for temporary resident visa (“TRV”), work permit
and study permit applications submitted abroad. The new
forms must be completed electronically and validated
before they are signed and submitted to a Canadian visa
office in application for an immigration document. These
new application forms were designed and introduced to
facilitate date entry into the Global Case Management
System (“GCMS”) that has been rolled out to all Canadian
immigration offices abroad.
While initially older versions of these application forms
were accepted, as of August 1, 2011 the new 2-dimension
bar-code forms are the only temporary resident application
forms that will be accepted for TRV, work permit and study
permit applications submitted outside of Canada. CIC will
also no longer accept hand written application forms for
these lines of business. The purpose of the new bar-coded
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forms is to streamline application processing and shorten
wait times. Practically speaking, however, the introduction
of GCMS and the new bar-coded forms have actually
resulted in longer processing times at certain visa offices.
Andrea Baldwin
Halifax office
902.420.3370
abaldwin@stewartmckelvey.com
Lana MacLellan
Halifax office
902.420.3321
lmaclellan@stewartmckelvey.com
This newsletter is intended to provide brief informational summaries only of legal developments and topics of general interest and does not constitute legal advice or create a
solicitor-client relationship. The newsletter should not be relied upon as a substitute for consultation with a lawyer with respect to the reader’s specific circumstances. Each legal or
regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to this newsletter or its application to you, you are
encouraged to consult a member of our Firm to discuss your needs for specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changing
nature of the law, Stewart McKelvey is not responsible for informing you of future legal developments.
15

Upcoming Events
Speaking Engagements
On September 28, Clarence Bennett participated in a panel discussing
Managing Workplace Risk: Focus on Conducting Workplace Investigations
for the Canadian Bar Association New Brunswick professional
development program held in Fredericton.
On November 15, Richard Petrie participated in the Labour Law
Conference 2011 presented by Lancaster House, held in Halifax. He was
part of a panel discussing Pension Plan Issues: Seeking Solutions to the
Pension Plan Sustainability Crisis and Dealing with Day-to-Day Problems.
Rebecca Saturley co-chaired the conference.
Peter MacLellan presented to the Institute of Chartered Accountants of
Nova Scotia (ICANS) November 10 on Social Networking and HR Issues.
Rebecca Saturley will be a panellist at the Lancaster House Labour Law
Conference being held in Toronto December 8. Her topic is Who’s Telling
the Truth?: Grappling with the Issue of Witness Credibility.
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Service First
1 We will work to provide you with the highest quality of confidential, ethical legal
services.
2. We will work with you to develop a full understanding of your business /
organization and expectations.
3. We will pursue your work conscientiously and without delay. We will work together
with you to establish time specific goals and objectives that meet your needs.
4. We will delegate work to our lawyers who have the legal expertise and
experience appropriate to both the nature and complexity of the matter and our
understanding of your expectations. Where deemed appropriate by you, we will
designate a qualified lawyer as an alternative service contact to ensure continuity of
service when the lawyer responsible for your matter is not available. At your
request, we will work with you to develop practical fee estimates. We will always
strive to add value.
5. At your request we will provide documentation that outlines the scope of the legal
services to be provided; the potential timeline for handling the matter; a list of the
client team members and alternate service contact, with their fields of expertise;
and our lawyers’ contact information.
6. We will meet and strive to exceed your expectations and always welcome your
feedback. We will from time to time, seek from you, either formally or informally, an
assessment of our performance.
7. We will maintain effective channels of communications including keeping you
informed of all significant developments in the legal matter and responding to your
contact in a timely fashion.
8. Accounts will be easy to understand. We will always be receptive to client feedback
on our billing practices. When issues arise, we will treat them seriously and
respond promptly.
9. If you are dissatisfied with our services, or if you feel we have failed to meet any of
these commitments, we ask that you call the service lawyer on your matter, the
alternate service lawyer, the local Practice Manager or Managing Partner to discuss
your concern. We will honestly and fairly address your concerns.
17

Labour and Employment Group Members
Charlottetown, PE
Tel: 902.892.2485
Fax: 902.566.5283
E-mail: charlottetown@stewartmckelvey.com
Direct Dial Residence E-mail
Rosemary Scott, Q.C 629.4503 569.3021 rscott@stewartmckelvey.com
Tracey Clements 629.4538 569.3776 tclements@stewartmckelvey.com
Murray Murphy 629.4558 892.8019 mmurphy@stewartmckelvey.com
Janet Clark 629.4562 367.2141 jclark@stewartmckelvey.com
Stephen Carpenter 629.4556 687.2855 scarpenter@stewartmckelvey.com
Patti Wheatley 629.4546 940.7431 pwheatley@stewartmckelvey.com
Fredericton, NB
Tel: 506.458.1970
Fax: 506.444.8974
E-mail: fredericton@stewartmckelvey.com
Direct Dial Residence E-mail
Gordon Petrie, Q.C. 443.0150 459.8672 gpetrie@stewartmckelvey.com
Fred McElman, C.M., Q.C. 444.8979 454.2403 fmcelman@stewartmckelvey.com
Richard Petrie 443.0155 455.0287 rpetrie@stewartmckelvey.com
Clarence Bennett 444.8978 454.8978 cbennett@stewartmckelvey.com
Melissa Everett Withers 443.0131 454.2683 meverettwithers@stewartmckelvey.com
Counsel
Gérard La Forest, C.C., Q.C 443.0135 460.0992 glaforest@stewartmckelvey.com
Halifax, NS
Tel: 902.420.3200
Fax: 902.420.1417
E-mail: halifax@stewartmckelvey.com
Direct Dial Residence E-mail
Peter McLellan, Q.C. 444.1717 425.5248 pmclellan@stewartmckelvey.com
John Plowman 420.3322 423.4942 jplowman@stewartmckelvey.com
Brian Johnston, Q.C. 420.3374 422.5896 bjohnston@stewartmckelvey.com
Grant Machum 420.3330 477.6788 ggmachum@stewartmckelvey.com
Lisa Gallivan 420.3392 443.6230 lgallivan@stewartmckelvey.com
Rebecca Saturley 420.3333 423.8622 rsaturley@stewartmckelvey.com
Rick Dunlop 420.3384 229.7424 rdunlop@stewartmckelvey.com
Mark Tector 420.3358 225.0520 mtector@stewartmckelvey.com
Level Chan 420.3389 229.5838 lchan@stewartmckelvey.com
Andrea Baldwin 420.3370 abaldwin@stewartmckelvey.com
Jessica White 420.3379 405.6472 jwhite@stewartmckelvey.com
Michelle McCann 444.1724 440.7064 mmccann@stewartmckelvey.com
Sean Kelly 444.1742 471.5359 skelly@stewartmckelvey.com
Staff Lawyer
Alison Strachan 420.3387 429.2174 astrachan@stewartmckelvey.com
Counsel
Donald McDougall, Q.C 420.3312 443.6158 dmcdougall@stewartmckelvey.com
Moncton, Office
Tel: 506.853.1970
Fax: 506.858.8454
E-mail: moncton@stewartmckelvey.com
Direct Dial Residence E-mail
André Richard, Q.C. 853.1962 384.3922 arichard@stewartmckelvey.com
Christopher Stewart 383.2224 384.7115 cstewart@stewartmckelvey.com
Sacha Morisset 853.1942 383.6939 smorisset@stewartmckelvey.com
Jennifer Ronalds 853.1979 jronalds@stewartmckelvey.com
Saint John, NB
Tel: 506.632.1970
Fax: 506.652.1989
E-mail: saint-john@stewartmckelvey.com
Direct Dial Residence E-mail
William Goss, Q.C. 632.9515 529.1910 wgoss@stewartmckelvey.com
James LeMesurier 632.2776 652.8962 jlemesurier@stewartmckelvey.com
Stephen Hutchison 632.2784 shutchison@stewartmckelvey.com
Catherine Lahey 632.8307 672.2602 clahey@stewartmckelvey.com
Vanessa Paton 632.8332 651.9765 vpaton@stewartmckelvey.com
St. John’s, NL
Tel: 709.722.4270
Fax: 709.722.4565
E-mail: st-johns@stewartmckelvey.com
Direct Dial Residence E-mail
Harold Smith, Q.C. 570.8895 753.8337 hsmith@stewartmckelvey.com
Ian Wallace 570.8839 739.9495 iwallace@stewartmckelvey.com
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Stephen Penney 570.8881 722.8874 spenney@stewartmckelvey.com
Twila Reid 570.8828 237.1339 treid@stewartmckelvey.com
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