Canada: Employers Beware: New Compliance And Enforcement Measures Coming To The Canada Labour Code

Bills C-44 and C-86 bring a suite of amendments that confer greater authority on the Canada Industrial Relations Board (the CIRB) to adjudicate certain employment disputes under Part II and Part III of the Canada Labour Code. These changes provide a centralized avenue for employees to have their complaints dealt with, rather than having each complaint under the Code adjudicated differently, as was the case prior to these amendments coming into force.

Amendments to the Code

Increased Powers for the CIRB

As of July 29, 2019, the CIRB is responsible for dealing with:

• Unjust dismissal complaints
  • These complaints were previously dealt with by private adjudicators under Part III of the Code. Under the new amendments, complaints of unjust dismissal must first be filed with the Labour Program of Employment and Social Development Canada. If the complaint remains unresolved, complainants can then request that their complaint be referred to the CIRB for adjudication. 
• Wage recovery appeals
  
  
  • Appeals of these nature can now be heard by the CIRB through referral by the Minister of Labour (the Minister) or by appealing directly to the CIRB. The appeal must be filed within 15 days of the decision and may only relate to a question of law or jurisdiction
• Reprisal allegations made under Part III of the Code
  • Employees will be able to make a complaint directly to the CIRB if they believe they have been the victim of a prohibited reprisal by their employer for exercising any of their rights under Part III of the Code, or for providing certain information related to employers’ obligations to the Minister, inspector or the CIRB. Prohibited reprisals include dismissal or layoff, suspension, demotion, financial penalties, or disciplinary action. This amendment also places a reverse onus on the employer to prove there has been no reprisal.
• Occupational health and safety appeals
  • Powers to adjudicate health and safety appeals previously held by appeals officers under Part II of the Code have been transferred to the CIRB. Employees and Employers will be able to appeal directions and decisions related to dangers in the workplace directly to the CIRB. Furthermore, the CIRB may appoint an external adjudicator, who has all the powers and duties of the CIRB to determine any matter. 

The CIRB’s new powers also include the ability to suspend and reject complaints made under Part III of the Code, and restrict a person from using multiple recourse mechanisms for the same matter (e.g., simultaneously filing an unjust dismissal, a genetic discrimination, and a reprisal complaint under the Code).

Internal Audit And Inspector’s Orders:

The new amendments give the Minister authority to order an employer to conduct an internal audit of its practices to determine if the employer is in compliance with Part III and report the results to the Minister. An inspector may issue a compliance order or a payment order if it determines that the employer is contravening a provision of Part III of the Code, which includes many changes to hours of work and new paid leaves coming in force on September 1, 2019. 

Other measures to come in force in 2020

In addition to the issues discussed above, a number of new changes related to compliance and enforcement are expected to come in force in 2020, including:

• A New Head of Compliance and Enforcement: Amendments brought in by Bill C-86 will establish a new head of compliance and enforcement who will assume the powers and duties of Labour Program inspectors and regional directors and will perform most functions related to administering and enforcing Parts II, III and IV of the Code.
• Discretion to Extend Time Limits: Regulations to come into force at a later date will permit the Minister to extend the time limit for filing complaints under Part II of the Code. Currently, extensions are only permitted if the complainant mistakenly files a complaint on time, but with the wrong government official. 
• Administrative Monetary Penalties: These amendments will create a new regime of administrative monetary penalties under Part IV of the Code to promote compliance with Occupational Health and Safety (Part II) and Labour Standards (Part III). They will serve as a financial deterrent to non-compliance with associated penalties up to $250,000. 
• Public Naming: Another upcoming enforcement tool will give the Minister authority to publish the names and information of those employers who have contravened Part II and Part III of the Code, which will most likely be done online. The Code will permit the publication of the name of the employer, the nature of the violation and the penalty imposed. 

Take-aways for employers

The amendments discussed above are largely procedural, but should not be ignored by employers as they introduce significant consequences for failure to comply with the Code. While the monetary penalties and public names repercussions are not anticipated to come in force until 2020, it may be prudent for employers to take proactive steps to ensure their workplaces are compliant with the Code and avoid the risk of being subjected to the enforcement measures discussed above. 

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