I had a dentist ask me whether they have to give a good/bad/any reference for an employee who no longer works for them. They were concerned, because it is a relatively small industry, that anything less positive they said about the employee would come back to hurt them.
My response? Just tell the truth.
This simple and effective position was recently confirmed in a case in an Ontario Court.
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I’ve finally had a chance to review the 280-page federal budget for this year (building upon the work done by Michael Carabash on our blog) with an eye to employment law and what dentists need to know.
Here is my brief overview of changes we can expect as a result of the 2017 Federal Budget: Read more
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In 2011 employers only had to write a harassment policy and inform their workers about the policy. No other duties were imposed on employers by the Ontario Occupational Health and Safety Act (Act).
So, when an employee lodged a complaint against its employer for failing to investigate a complaint of harassment, the Ontario Labour Relations Board (OLRB) denied him on the basis that the Act does not impose a positive duty on the employer to investigate complaints of harassment [Investa Financial Services Inc and Industrial Alliance Insurance and Financial Services Inc 2011 CanLII 30897 (ON LRB)].
A few years later, the OLRB again had a similar case before them and affirmed their earlier decision saying that “…the Act places no obligation on employers to provide a harassment free workplace or to provide any specific type of investigation or outcome of a harassment complaint“.
But, since September 8, 2016, the rules of the game have changed. The Act was amended and now employers’ responsibilities are significantly bolstered when it comes to workplace harassment. Employers can no longer simply create a harassment policy and sit on their laurels. They now have a positive duty to address harassment in the workplace on an ongoing basis.
And if you think that implementing the changes required is too much work, or you just don’t have time for it… think again! In February 2017 a company was fined $70,000 for failing to comply with Ministry of Labour orders requiring them to develop workplace harassment and violence prevention programs – $10,000 per count of non-compliance. You can read about it here.
Here’s what Ontario dentist employers need to know about the amendments and their new obligations:
The Act now states that “workplace harassment” includes workplace sexual harassment and it defines “workplace sexual harassment” as:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome [Section 1(1)]
It is also important to note that the Act also clarifies that “a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment” [Section 1(4)].
These expanded definitions must be included in your office harassment policy.
Under the new amendments employers must now consult with their Health and Safety Representative (HSR) or Joint Health and Safety Committee (JHSC) when developing and maintaining a workplace harassment program [Section 32.0.6(1)].
Practically speaking, this means that you will have to provide the HSR or JHSC with any information relevant to the harassment program and allow them to comment on the program either verbally or in writing. Such comments must be considered in good faith and suggestions implemented, where appropriate.
Because the HSR and JHSC may not be qualified to make comment regarding issues of workplace harassment, it may be wise to provide training that is relevant to ensure that the HSR or JHSC can give meaningful feedback about the program [Section 32.0.8].
Additionally, once the program is in place, employers now have an obligation to review the program at least annually to ensure it is working properly [Section 32.0.1(1)(c)]. More frequent re-visits to the program may be warranted where an investigation reveals gaps in the program.
Employers now have an active (as opposed to reactive) duty to protect workers from workplace harassment by conducting investigations into “incidents” as well as “complaints” that are appropriate in the circumstances [Section 32.0.7(1)(a)] This means that if an “incident” of harassment comes to the knowledge of the dentist, that incident must be investigated regardless of whether or not there is a formal complaint made about it. You won’t be allowed to bury your head in the sand and say “no one complained, so I didn’t investigate”. As for what is “appropriate in the circumstances” – timeliness, fairness and thoroughness are all likely to be taken into consideration.
The harassment program now has to include “measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser” [Section 32.0.6(2)(b)].
Because of the imposition of these new positive duties on the employer, the Ministry of Labour investigators were also given additional powers. An investigator can now order an employer to carry out an investigation by an impartial person with specific knowledge, experience or qualifications and obtain a written report from the investigator [Section 55.3]. Such investigation will be at the expense of the employer. An “impartial person” may be internal or external, depending on the circumstances. Such an order may be made in circumstances where there is a complaint to the Ministry of Labour or where a Ministry blitz uncovers workplace problems that have not been addressed or have been inadequately addressed.
Information obtained in the course of a harassment investigation, including identifying information about individuals involved, must not be disclosed unless necessary for the purpose of investigating or taking corrective action or as required by law [Section 32.0.6(2)(d)].
The complainant and alleged harasser (if an employee) must be informed of the results of an investigation and any corrective action that has been taken as a result of the investigation [Section 32.0.7(1)(b)]. This doesn’t mean that the entire report be disclosed to the parties (especially in light of the obligation to keep information private). But it may mean that you provide a summary of the report with as much information as necessary to discharge the obligation of informing the parties about the results and corrective action.
Reports and relevant materials must be kept by the employer for at least 1 year.
Now that you know about the changes, you not only have to advise your employees about the amendments in the law by re-writing your harassment policy and program, you also have to implement it and re-visit it every year!
For further reading about employers’ obligations under the Act, you can read the Ministry of Labour’s Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act which is very easy to understand and covers all of the new amendments as well as the preexisting laws.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about the OHSA, need advice about your obligations as an employer, or need help coming up with and implementing the new harassment policy, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
I just read a good case out of British Columbia that still has an effect here in Ontario – and I know applies to Dentists (who hire employees on probation without a written contract).
Times were good. You know – when government was smaller and left small businesses alone to start, build themselves up, save taxes, reinvest and expand. To create jobs. To run marketing campaigns. To renovate. To spend on innovation. To buy new equipment. To save / defer taxes. To increase the GDP. And now the current government is making it harder by shifting focus. The current government wants to be bigger. Wants to run new and costly programs. Is it just me or does the government not have a clear plan on what they want Canada to be and by when. Their spending is out of control. And who is fronting the bill for all of that? Taxpayers.
And now all small businesses seem to be targeted.
Take for example the following (which came out of the 2017 budget today). The government all of a sudden isn’t happy that businesses structured as corporations can income split among family members to save taxes on the whole. You know: a dentistry professional corporation that has a dentist and their spouse receiving $50k in dividends each instead of the dentist taking $100k personally, which results in significant tax savings. Like I said, the government all of a sudden isn’t happy they can do this. But guess what? That’s the nature of a corporation. That’s how dividends work. They’re not guaranteed forms of payment (like loan repayments are). It’s money generated from a business, for which taxes are paid, and then which can be distributed to shareholders (or not). That’s part of the benefit of having hard-working Canadians TAKE THE RISK of starting / maintaining their own business. Maybe that’s their retirement plan – you know: to keep the money in their corporation instead of in an RRSP and to take it out when they need it (when they do retire)?
So why is the government contemplating taking that away? It seems like they don’t like small Canadian controlled private corporations with only a few employees being used to horde cash, investments, property, etc. and avoid paying taxes. I’m sure they would prefer to FORCE everyone to buy RRSPs and pay for their own retirement (because they don’t trust that Canadians are smart enough to plan ahead and take care of themselves when it’s time to stop working). But small business owners are risk takers and entrepreneurs. They don’t think about retirement. They love what they do everyday and don’t want to be forced to stop. They don’t want to tie their cash up in an RRSP when they need it to expand their business. They could earn much more by reinvesting in themselves THAN BY getting a GIC from the bank or putting it in the volatile stock market.
FYI, the Government also already punishes (with very high tax rates) income earned by a corporation on a passive investment portfolio. But now, per the federal budget, they want to go after that too!
Private corporations exist to help mitigate risks of adventurous Canadians wanting to start their own business WHILE AT THE SAME TIME allowing private individuals to raise money to expand their business (by introducing ownership levels and maybe even allowing the company to raise public funds one day). What does the government not understand about this? Why interfere with that? I thought we were in a laissez-faire socio-economic society! Is the current government trying to drain Canada of all risk-taking, smart business owners? Who then is supposed to employ the vast majority of Canadians? The public sector?
From what I’ve read, here’s the worst part of the federal budget – namely, that the government wants to look at measures (old and new) in order to increasingly tax small business owners:
“The Government is therefore further reviewing the use of tax planning strategies involving private corporations that inappropriately reduce personal taxes of high-income earners. In doing so, the Government will also consider whether there are features of the current income tax system that have an inappropriate, adverse impact on genuine business transactions involving family members. The Government intends to release a paper in the coming months setting out the nature of these issues in more detail as well as proposed policy responses. In addressing these issues, the Government will ensure that corporations that contribute to job creation and economic growth by actively investing in their business continue to benefit from a highly competitive tax regime.”
I don’t agree with the notion that ONLY job creation will save a private corporation from paying more taxes. What if that private corporation invested, as per my opening statements, in running a marketing campaign? In buying new equipment? In leasing new space? There are OTHER things to invest in than just hiring more people. And actually, by taxing corporations more, there will be LESS money to hire people. Small businesses will have to scale back their expansion plans.
The only good news from the federal budget it that capital gains were left alone (maybe just for now).
If the government continues this path, Canada will NOT be competitive in attracting businesses, capital, and smart / risk-taking individuals.
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David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or firstname.lastname@example.org.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or email@example.com.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or firstname.lastname@example.org.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or email@example.com.
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David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.