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The Legal Playing Field

Everything I needed to know about the law I learned on the softball diamond

The Rally-Killer or Not?

Posted in Minimum Wage

The argument for increasing the minimum wage is definitely political.

At any time in the Ontario economy, 1 in 10 people earn the minimum wage.  No doubt that hiking it would be politically advantageous – VOTES.  It may not necessarily be the right thing to do.

It’s a difficult task that Minister Naqvi has asked the Committee to work on:

  • Understanding that there are currently reduced opportunities for low skilled and young workers, how would hiking the minimum wage affect them as well as affect the business market?
  • Not equating poverty with the minimum wage – some of the minimum wage earners are not necessarily poor but perhaps just starting out in their chosen field, could still be living at home.  They are not necessarily householders living at the ‘poverty line’.
  • Setting a clear set of objectives and processes in place for future increases that are based on facts that help stimulate the economy as well as benefit business bottom-line, creating sustainability in the marketplace.

This is not for the faint of hear.  It is tenuous and requires leadership to not just respond to the pressure and act, but to seek counsel and coaching to put a good structure in place for the future.

Strike Three – You’re Out!

Posted in Employment, Minimum Wage

The last 2 posts focused on the business environment and the non-starter anti-poverty tactic of increasing the minimum wage in Ontario.


A clear thought must be brought to bear on our competitiveness in the Canadian market and of course, in the international business market.  Already, over the last decade, jobs have left Canada and Ontario specifically for lower paying locales to the South and beyond.

Thinking about this clearly, increases in wages directly affect the bottom line – profits.  We can say whatever we want about business, but the fact are, if I do not have profits, I usually won’t stay in business very long.

While there is something to be said for helping drive the economy by adding money into the pockets of the entry-level job workers, the fact remains that while minimum wage has not increased in the past 3 years, the rate of unemployed young workers is rising as seniors are taking over in those roles.

Watch for the Rally-Cry up next.

Strike Two Against the Increase

Posted in Minimum Wage

In my last post, you could see that Strike One focused on the business market.


Is the minimum wage really an anti-poverty tactic?  Is there a clear link between poverty and the minimum wage.  Think about this:

The poor tend to not have jobs at all.  If there is an adverse reaction in the business market to an increase in the minimum wage, this will only add to issues for ‘poor people’ as it would continue to limit their prospects.

Usually those who are getting the minimum wage are in entry level jobs.  The expectation is that these people would grow and develop in their roles and move forward with increases due to performance and time in position.  Many organizations have mechanisms in place to help this take place so that they can retain the talent they attract at all levels.

Strike Three coming up!



Strike One Against the Increase

Posted in Baseball, Minimum Wage

Every batter gets an opportunity to hit a home run, get on base or of course strike out.

In my last post, I described the opportunity and debate that has arise around the increase of the minimum wage in Ontario.


Many methods for increasing the minimum wage have been used in the past.  In historical figures, the increase have been ad hoc to say the least.  It does seem that increases over 10% have an adverse affect on the Canadian business market. (This article has some good arguments).

In the US it is the opposite, as people make themselves more available for work and the business community likes this.

If using the 10% rule, then you would current get a $1.00 increase in the minimum wage taking it to over $11.00 per hour.  How can small businesses, who are supposed to be the heart of future growth, development and innovation, be able to pay this on a regular level to their current workforce, not to mention the pro-rata increases that would need to take place at every other grade level in the organization?

What will most likely happen here is that less people will be employed and there is the potential to replace labour with capital (example: robotics, streamlined processes etc).

Stay tuned for STRIKE TWO.



Proposed Increase in Minimum Wage aka Seismic Increase

Posted in Employment, Minimum Wage

The current proposed increase of minimum wage in Ontario can be seen as a seismic in

creaseif it is to follow on what has occurred in past history.  The last increase to minimum wage in Ontario took place in March 2010…and now, activists are looking for a $14 minimum wage.  Current minimum wage is $10.25/hour.


If we look at the historical increases here is the breakdown:

A 50% increase in minimum wage in one (1) decade. What could be next?

The real question is how is this increase going to take place an when?

Labour Minister Yasir Naqvi has appointed a committee to report back after it looks at what the increase should be and how it should be determined.  Issues surrounding cost of living increase or indexed increases will be address as opposed to the random, ad hoc methods of the past.

Minister Naqvi has shown himself to be a pretty good manager in a relatively new position because he has not ignored the issue and instead referred the matter to a representative advisory panel to get good coaching on the increase platform – it’s appropriateness and how this should be handled in the future.

Of course with any play on the field there is the opportunity to strike out the batter.  In the next posts, you will see the 3 strikes against common arguments for increasing the minimum wage.


Sometimes a Swimming Pool is Just a Swimming Pool

Posted in Baseball, Strategy

This  was the comment of the Ontario Court of Appeal in the Occupational Health and Safety Act case, Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 decided in February of 2013.

“The Pitch”

The Blue Mountain case dealt with the application of the OHSA employer reporting requirements under Section 51(1) and the preservation of the accident scene requirements of Section 51(2) of that Act.  A guest at the Resort had drowned in an unsupervised swimming pool at the Resort.  No worker was present. No Report of the incident was made to the Ministry of Labour under Section 51 of the OHSA or otherwise in 2007.

A Ministry of Labour Inspector subsequently ordered the Resort to Report based on Section 51(1) which reads, in part,  as follows:

“Where a person is killed or critically injured from any cause at a workplace, … the employer shall notify an inspector … immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence…” 

“The Error”

The position of the Ministry of Labour, upheld at the Ontario Labour Relations Board and on Judicial Review by the Supreme Court of Ontario was essentially that every place is a workplace because a worker may, at some point, be at that place.  According to the Court of Appeal, such an interpretation would mean that virtually every death or critical injury, to anyone, anywhere, whatever the cause, must be reported and the applicable site shut down under Section 51(2) of The Act until a Ministry of Labour  Inspector released the site. The Court of Appeal properly found this to be an interpretation which would be absurd and therefore found that the decision by the OLRB should be overturned as unreasonable.

This reminds me of the time I attended Umpire’s School to receive Softball Rule interpretation guidelines for the coming year only to be forced to endure endless blathering about the alleged interpretation of the Rule governing how a base runner could be put out by a fielder who touches the  base runner, while the base runner is  off a base, with the ball contained in the fielder’s glove.  The Umpire in Chief, obviously a lawyer wannabe, pronounced that the Rule in question  could certainly be interpreted to mean that the fielder could touch the base runner with his empty hand while the fielder simultaneously was holding the ball in his glove hand,  and thus put the base runner out. This was also patently absurd but nonetheless a literal reading of the applicable rule, as it then was.

“The Call”

In Blue Mountain the Court of Appeal ruled that an employer is required to report an occurrence and Section 51 of the Occupational Health and Safety Act will apply, if: 

  • ·         either a worker or non-worker is killed or critically injured within the meaning of the Act and Regulations;
  • ·         the incident occurs at a place where either a worker is carrying out his duties when the incident occurs, or, where a worker might reasonably be expected to be carrying out his duties in the ordinary course; and,
  • ·         there is a reasonable nexus between the hazard  giving rise to the death or critical injury and a realistic link to worker safety at the workplace. 

The Court of Appeal concluded that: “ … there was no evidence that the Blue Mountain guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.”

Accordingly, the Retail Store presumably does not have to report an occurrence and close down a portion of the store just because a customer suffers a heart attack in the store.  However, what if a customer breaks his leg due to a slip hazard in an aisle or if material falls off the top shelf and strikes the customer causing unconsciousness?  Is there a nexus between the hazard giving rise to the subject critical injury and worker safety at the workplace?  Obviously, the facts still need to be assessed in each case, however, the Ontario Court of Appeal has done its best to clarify the “Rule Book” and establish a decision making framework in such circumstances.


A Snitch in Time

Posted in Baseball, Strategy

The Canadian Federal Government Budget, delivered on March 21, 2013, was indeed a “conservative” financial recipe for baking the future Canadian economic pie..  The Budget contains  very modest, but well conceived, spending initiatives aimed at: job creation; skills training; and infrastructure;  as well as much needed help for the Manufacturing Sector .  However, the Budget also focuses on collecting more revenue for the Federal Government so as to attempt to balance the Budget by 2015.  What caught my eye was the initiative to offer cash incentives to persons who “blow the whistle” on people allegedly, and inappropriately, seeking to evade taxes by moving money to off shore safe havens..  Be afraid, be very afraid.  The Fed’s have just enticed your neighbours to snitch on you, just like a bitter ex-spouse.


Stealing the sign or the sign for stealing…..are you going to snitch?

Stealing Signs” 

Isn’t paying tax snitches a lot like the practice of “stealing signs” in a baseball game.  It may not break the Rules per se but the tactics employed can prove to be a bit unseemly.  No one seems to mind that a runner at second base may steal the Catcher’s sign to the Pitcher and relay the same to the Batter, that is just a traditional game within the Game.  But when a team hides a spy in the outfield bleachers using high tech means to steal the same signs and relay the information to the Batter, that makes news and is generally viewed  as beyond the pale. 

A Toronto morning radio host recently referred to the old joke:    “Surely you remember the famous Russian magician, … who turned his Family in to the K.G.B.”

Kathleen Wynne’s Victory is Good News for Organized Labour and potential bad news for the NDP

Posted in Baseball, Collective Bargaining, Employment, Labour Law, Strategy

The victory by Kathleen Wynne at the Provincial Liberal Party Leadership Convention is a “Home Run” for trade union’s in Ontario.

It now appears that among Ms Wynne’s first acts as Premier Designate will be to call the Teacher’s unions and invite them and their fellow travellers, such as  the  Canadian Union of Public Employees,  to meet her and her Team to discuss how they can all play nice on the sandlot.

Ms Wynne will use her prior good working relationship with Teacher’s unions, forged as a former provincial Education Minister,  to demonstrate that she intends to rebuild the effective working coalition between the Liberal’s and organized labour.

It says here that one of the main reasons Liberal Party  delegates selected Ms Wynne over her main rival Sandra Pupatello was that Ms Wynne,  a professionally trained  mediator, is  perceived as more likely to resolve the open conflict/hostility with Teachers and to buy more time, in a minority Parliament,  for the  new Liberal Lineup  to distance itself from the failed and patently unpopular policies and practices  of Premier Dalton McGuinty, before the next  Provincial Election takes place.

The unions will understand that they have real short term  leverage  with the new Liberal squad and its newly appointed Skipper.

The Premier Designate knows that she and her Red Team desperately  need the Teacher’s unions, and their  legendary campaign assets in her Team dug out.  She also understands that she  must appease the “Working Families Coalition”, a.k.a. organized labour,  if she is to keep the NDP and its rookie Skipper,  Andrea Horvath, playing defense from  the outfield.

But how to accomplish all of this without entirely throwing her prior Team under the bus.  Always remember, “…all evil is in the past.”

The answer is to signal a profound commitment to consult on and ultimately implement:  education reform;  labour law reform;  as well as fiscal sustainability.  (This was exactly the formula that kept successive Ontario Progressive Conservative. Governments in power,  in minority government conditions,  for the years between 1971 – 1985.)

The theory will be that labour peace and economic growth and sustainability go hand in hand.

Look for prominent Cabinet appointments of left leaning members to the Education and Labour Ministerial  portfolios.  (In Ontario politics, like baseball,  it is clear that you need a supply of “port siders pitching on your staff.) In the same manner,   don’t rule out  a possible defection of a prominent NDP caucus member to cement the Liberal/trade union relationship.

But apart from a plethora of consultation (talk and more talk is cheap),  what kinds of real  labour and employment  law reforms would potentially turn the trick in garnering trade union support while protecting the Liberals from attack,  from the right,  as economically profligate:

1. “Card based certification” under the Labour Relations Act, for all sectors not just the construction sector.  (While this is truly just  inside baseball stuff for everyone other than trade unionists, it is a real wedge issue with the Tory party);

2. Pension reforms  aimed at securing pension benefits for all existing    pensioners and providing extended plan funding relief for fund sponsors. (This will potentially rip a plank out of the NDP election platform); and,

3.  Collective bargaining and arbitration reforms designed to ensure that the bargaining process,  in at least the public sector, is treated as virtually sacrosanct going forward.  (This will be very attractive to all Public Sector Union’s and their membership and will go some distance to eliminate the sting of Bill 115 with the Teachers).

Each of the above-noted moves, if implemented quickly,  will  almost certainly score immediate RBI’s  and will potentially keep the Liberal “Big Red” Team on the playing field,  and  at bat,  for an extended  Inning.  All of which would be music to the ears of  nervous Liberal MPP’s on the bench and  staring down certain demotion to the Minor Leagues if their Parliamentary Game ends prematurely.

Fans are advised: to watch the Waiver Wire;  keep their  score cards handy; and,  to hold onto their  caps.  “…It’s never over till the last out is made.”


Bill C-377 Passes in the House of Commons – Is this a Sign of the End of the Harmonic Convergence?

Posted in CAW, Labour Law, Strategy

With December 21, 2012, the end of the Mayan Calendar, just around the corner, amazing things are happening.  Evidence in this regard is the fact that the Canadian House of Commons, on December 12, 2012,  passed Bill C-377 amending the Income Tax Act with respect to certain disclosure requirements for labour organizations.  The Bill will now go to the Senate  in the new year as the next stage in the legislative process.  Based on the comments and lobbying activities of a number of labour organizations one might have thought that the end of the world as we know it is at hand.  But with respect, I don’t think that is really the case.

What would this Bill require?

 Simply put, the Bill requires modest transparency on the part of labour organizations operating in Canada.   A public information return under the Income Tax Act would be required by every labour organization including:  disclosure of certain financial statements; disclosure of certain financial transactions and disbursements above $5,000 and disclosure of certain salaries paid  to high ranking employees and officials  of the organization.  Minimal disclosure would also be required concerning non-labour relations activities.

The Bill is far from an attack on fundamental union rights, nor is it an attack on privacy issues as has been claimed.

The proposed legislation merely responds to the sentiment of Canadians, including a number of unionized employees, who seek a mechanism promoting clarity and accountability concerning how tax deductible monies are being spent by labour organizations.

This proposed legislation is similar in many respects to disclosure laws in other jurisdictions with vibrant labour organizations. As such, the proposed legislation will not adversely affect the fundamental activities and purposes of Canadian labour organizations.


The Female Bully Generation

Posted in Employment, Labour Law

Bill 168… Violence and Harassment in the Workplace has served to confused people.

Particularly on the harassment side…many not sure what it covers, the majority of people have the capability of understanding violence…it’s the word and concept of harassment that can cause small issues to grow.

Section 32:

32.0.6 : deals with having to develop and maintain a policy with respect to workplace harassment.  People often ask “ is this different subject matter than under the Human Rights Code? And if it is different then what are we talking about?   Is it that someone is not being nice or friendly or ignoring me…..they are bothering me…..what is that?  There is no clear description.

Ordinary interaction gets called harassment, employers are in a dilemma, and most policies are about violence.  If a complaint is made, you have to investigate.  If you have to investigate, but not sure what you are investigating, the outcome and even the process can be troublesome.

This section  (32.0.6) is for other grounds than protected rights.  How broad is harassment  defined?  How do you know it if you see it?  What is the recourse?  Unfortunately, it can be used as a weapon, and to deflect from other things.

Example: Unions that are being creative with an issue that may not fit into the subject matter of a grievance and are sometimes framing it as ‘harassment’.    How do you respond if the union is using this instead of filing a grievance?

The answer is:

….conduct a low key investigation….if not proceeding through the grievance process, get the person who has raised the issue to provide a written statement of the nature of the interaction with the other individual in the supervisor ( often times a supervisor or lead head).  If this is not a grievance you do not need to involve the union by invitation.  If they are there let them participate.  Have the certainty that the policy says an investigation would be completed under the auspicious of the policy.

Ask the supervisor or individual to respond.  Get the story.  Don’t put your head in the sand, no firing everyone up, don’t call it a complaint under the policy.  If fertilizer hits the ventilation system, you are in a position to respond.  You have maintained your credibility. Everyone is committed to their positions very early on, so if it does explode, there can be no going back on that or changing the position, it no longer has the opportunity to become an afterthought.

You may find issues you do need to address and by not making a federal case out of the situation, it becomes the natural course of business.

It’s pretty easy to strike out, taking call three looking at the plate because they haven’t realized what was being thrown at them. You have the policy because the law requires it.  This can be perilous because of the lack of recognition.

Think about the bullying that could be happening in your organization – if a man was being bullied – would he report it?  Men will keep these types of incidents hidden, especially if the bully is a female.  Bullying certainly falls into the workplace harassment complaint category.

When a low key investigation is completed, there are many things that may not require an answer – but all of a sudden you have details and opportunity to create conversation.  You can learn (and teach) your team how to get together, deal with perceptions and get focused on creating a culture where harassment does not exist.