CANADA Law and Practice Contributed by: Christopher Pigott, Rachel Younan, Jacob Wagner and Felisha Jagiah, Fasken
Truth and Reconciliation, starting in 2021 for employ - ees in the federally regulated sector. Shortly after the federal government created this paid holiday, British Columbia, Prince Edward Island, Manitoba, Yukon and the Northwest Territories followed suit in recog - nising the National Day for Truth and Reconciliation as a paid holiday provincially. Required Leaves Employment standards legislation in each jurisdic - tion establishes various leaves of absence during which employees’ jobs must be protected. Common to most jurisdictions are maternity, parental, adop - tive, bereavement and sick leave. Some jurisdictions also provide for reservist leave, jury duty leave, organ donation leave, family obligations leave, emergency personal leave and family care-giver leave for seri - ously ill family members. Following a protected leave of absence, the employer is generally required to return the employee to the posi - tion that they held at the start of the protected leave, or to a comparable position if the original position no longer exists. The timing, duration, qualifying periods of employment, proof and notification requirements, as well as rules regarding the employer’s obligation to continue benefit-plan contributions applicable for the above-mentioned leaves vary by jurisdiction. As a general rule, employment standards statutes do not require paid leaves of absence. However, amendments to the federal Canada Labour Code, the Prince Edward Island Employment Standards Act, the Ontario Employment Standards Act, 2000, and the British Columbia Employment Standards Act have created exceptions to this general rule. Other government-provided payments may, however, be available to those on leaves of absence. By way of example, unemployment insurance benefits are pro - vided to those on maternity and parental leave and – in prescribed circumstances – for those on sick leave. Further, where an absence from work is the result of a work-related illness or injury, compensation may be available under the statutory workers’ compensa - tion regime administered by each province. However, many employers provide paid leave for periods of cer - tain leaves as part of their benefits programmes or
compensation packages – for example, paid maternity or parental leave is common. In some circumstances, employers could be obliged to provide a longer period of leave than required by statute in order to meet the duty to accommodate imposed by human rights law. Limits on Confidentiality At both common law and civil law, employees have an obligation to maintain the confidentiality of the employer’s proprietary information and not to dis - close or make use of such information for personal advantage. Employment contracts are frequently used to specifically reinforce this obligation. Confidential - ity clauses that limit the use and disclosure of non- public, proprietary information about the employer’s business, both during and following the end of the employment relationship, are generally enforceable. Canadian employers are also increasingly beginning to insert non-disparagement clauses in separation agreements with departing employees. These claus - es prohibit the former employee from making com - ments or statements that negatively impact the for - mer employer’s reputation, business, management, products, services and/or clients. Non-disparagement clauses that are clearly drafted are generally enforce - able. Employee Liability Generally, employees will not be found personally liable when acting in the course of their employ - ment within the scope of their authority. Rather, an employer will often be found to be vicariously liable for harm caused to third parties by actions commit - ted by employees in the course of discharging their employment duties, even if an employer has not been negligent or committed other faults. Canadian courts have identified policy reasons for placing fault and liability on employers rather than employees in such instances, including the employ - er’s power to direct and control its employees, the employer’s role in creating the risk of harm to oth - ers by creating the circumstances in which the harm occurred, and the employer’s ability to pay the harmed third party. However, an employee may be held liable
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