Human Resources Committee on Nov. 6th, 2012

[Charles Philippe Rochon]

It was the Arthurs commission. Harry Arthurs was the president of York University and the dean of the Osgoode Hall Law School. He is an internationally renowned expert in labour law. He is renowned for his integrity and expertise in the area. In other words, he is a smart cookie.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Thank you.

[The Chair, Conservative, Ed Komarnicki]

Thank you.

You may now proceed to proposed section 251.02.

[Charles Philippe Rochon]

Proposed section 251.02 is a provision that allows for the suspension of a complaint. Again, this complaint has been made within the appropriate timelines, but there may be circumstances under which the complaint cannot be dealt with immediately. What this provides is that the inspector can suspend the complaint so that the employee can take certain measures that are deemed to be necessary.

For example, let's say that the employee has filed a complaint, but there is some ambiguity in terms of what specific standard has not been respected. Again, the inspector could ask the employee to provide more information to clarify what the measure or the problem is. Likewise, there are sometimes circumstances where an employee will file a complaint, and the first question will be, “Okay, that seems to be a problem, but have you talked to your employer yet to see whether the mistake can be corrected?” Again, sometimes the employee will say no, so we will ask them to please talk to their employer and see if it can be resolved. If it can't, then we will deal with it.

This particular measure is meant to ensure that if somebody files a complaint, we can actually hold it in abeyance so that they will not have to file a new complaint afterwards. Again, this is to make sure they respect the six-month timeline. If they file the complaint and there is a problem with the filing, we will be able to get it corrected without having to ask them to make a new complaint, potentially outside the six-month period. Again, this is meant to ensure that if they filed it in time and there are some issues, we can correct that, without this being a disadvantage to the employee.

[The Chair, Conservative, Ed Komarnicki]

Monsieur Rochon, could you tighten up a little bit on your explanations? If there are questions, we will ask them. We are short on time—

[Charles Philippe Rochon]

That's the only thing I have to say about this.

[The Chair, Conservative, Ed Komarnicki]

Okay. You can move along, then, if you will.

[Charles Philippe Rochon]

All right.

We then provide, under proposed section 251.03 and the subsequent proposed section 251.04, the ability for inspectors to assist parties in reaching settlements. This is a provision similar to what we currently have under the unjust dismissal provisions—again, just clarifying that inspectors can help to do that.

We also have provisions afterwards, under proposed section 251.04, providing that where there has been a settlement related to wages, the employer can actually provide the money to the Minister of Labour, who will then give it to the employee to whom it is due. There is also a standard provision specifying that no prosecution can take place in that instance without the minister's prior approval. Again, this is to encourage employers to rapidly comply with their obligations.

[The Chair, Conservative, Ed Komarnicki]

Okay. Carry on.

[Charles Philippe Rochon]

Proposed section 251.05 specifies under what circumstances a complaint can be rejected, so it provides a number of grounds. These are grounds that we find in other legislation elsewhere, so inasmuch as possible, we try to be consistent. If the complaint is not within the jurisdiction of the inspector, if the complaint is frivolous, vexatious, if the complaint has already been settled, or if the complaint has already gone before court or another tribunal and has been resolved there, we won't have to deal with it.

If there is no evidence and nothing can be found to substantiate the complaint, it can be rejected in that case. Again, where a complaint has been suspended pending the employee doing something to resolve the issue, or if the employee has done nothing and hasn't followed up, then the complaint can be rejected.

If a complaint is rejected, we provide that the inspector must inform the employee in writing. We also provide for a review mechanism so that the employee can ask the Minister of Labour, or somebody who is delegated by the Minister of Labour, to review the inspector's decision. On review, if it is found that the complaint should not have been rejected, it will be sent back to an inspector for proper investigation.

There is also a privative clause, which is a pretty standard clause that simply says the minister's “confirmation or rescission” of the decision is conclusive, so it should not be subject to judicial review. As you know, privative clauses are not an absolute, so it could still go to court if there were unreasonableness in the decision.

[The Chair, Conservative, Ed Komarnicki]

Carry on.

[Charles Philippe Rochon]

All right. The next provision, under clause 224, is where we actually specify the limitation for payment orders, the limitation of the period of time in the overview, as was mentioned, and this would be basically, for most wages, 12 months from the date of the complaint, or 12 months from the date of termination, if that was prior to the complaint.

With respect to vacation pay, we're going back 24 months, and in terms of unfounded complaints, we've simply specified that a notice of unfounded complaint would be issued if the inspector cannot find any wages owing in the previous six months. As you know, we now have a six-month time limit for filing a complaint, which can be extended—so again, we can extend it there—but basically, if no wages are owing, they don't need to go back months and years past. They would simply issue a notice of unfounded complaint at that point.

[The Chair, Conservative, Ed Komarnicki]

Can you identify where you're at in terms of the subsection?

[Charles Philippe Rochon]

Yes, excuse me. That was clause 224—

[The Chair, Conservative, Ed Komarnicki]

Yes.

[Charles Philippe Rochon]

—looking at proposed subsections 251.1(1.1), 251.1(1.2), and 251.1(2).

[The Chair, Conservative, Ed Komarnicki]

Okay.

[Charles Philippe Rochon]

We're now moving to clause 225, which amends proposed section—

[The Chair, Conservative, Ed Komarnicki]

Just hold on a second, please. I think Mr. Boulerice has a question.

Go ahead.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you very much.

Subsection 251.1(2) has to do with the payment order. It says that you can go back 12 months or 24 months for vacation pay.

[Charles Philippe Rochon]

That is correct.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Let's imagine that there has been a systematic error made with an employee's pay cheque, regardless of whether this error was made in good faith or bad faith. Suppose that this has been going on for months, even years, say three, four, five or six years before the person realizes. At some point, the person realizes that an error has been made and makes a complaint within the six-month timeline. The individual would be able to get retroactive pay for the past 12 months only, not for the entire period in which they did not receive the amount they were entitled to. Could you tell me why the limit is 12 months?

[Charles Philippe Rochon]

In that situation, there would in fact be a limit. Someone who has not realized for years and years that there was a problem would be limited to 12 months or 24 months for vacation pay, based on the mechanisms under the code.

It should be noted that this rule applies to almost all the governments across Canada. Our timeline is as generous as, if not more generous than, all other governments. The only exception is Newfoundland and Labrador, where the timeline is not specified. In all other cases, no place has more than 12 months for wages.

Something else that I should mention is that the code does not prevent and will not prevent an employee from using civil remedy to recover any other amount. In that case, the employee could certainly go in court and ask to be reimbursed for all the other amounts. We specify that the limit only applies to the mechanisms used under the code. Nothing prevents civil remedy and the code does not impose any limit to that effect. Once again, an employee in that situation could hire a lawyer. If it is a small amount, the person could go to the small claims court. No one is opposed to that, but, based on the mechanisms under the code, we expect the employee to file a complaint within a reasonable timeframe so that we can process it.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

This limitation frustrates me a little; it bugs me. But I am satisfied with your answer and I am convinced that my colleague Ryan Cleary will agree with the fact that Newfoundland and Labrador is often better than the other places.

[The Chair, Conservative, Ed Komarnicki]

Carry on with clause 225, proposed section 251.101.