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EMPLOYMENT | Changes to Alberta Employment Law. Again.

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On November 1, 2020, several changes to Alberta’s Employment Standards Code came into effect. Changes include payment of earnings after termination, deductions, averaging arrangements for calculating overtime, rest periods and calculating general holiday pay. These changes are detailed in Bill 32: Restoring Balance in Alberta’s Workplaces Act, 2020. Remember the government’s red-tape inquiry? Bill 32 is a response to issues raised.

Bill 32 also includes changes to the Labour Relations Code, the Police Officers Collective Bargaining Act, the Post-secondary Learning Act, the Public Education Collective Bargaining Act and the Public Service Employee Relations Act. This article will only address changes to the Employment Standards Code. For more information on the other changes, see the Government of Alberta’s webpage.

Some of the provisions in Bill 32 came into effect on August 15, 2020:

  • The layoff period was increased from 60 days to 90 days, within a 120-day period. If an employee does not work for more than 90 days in that period, their employment automatically terminates. The employer must pay the employee termination pay.
  • The layoff period due to COVID-19 is 180 consecutive days. This means an employer can layoff an employee for 180 consecutive days for reasons due to COVID-19 and still recall them.
  • For group terminations or layoffs of 50 or more employees within a 4-week period at a single location, employers must give the Minister written notice at least 4 weeks before the first termination. Before, there were different notice periods based on the number of employees being laid off. These rules do not apply to seasonal employees or those employed for a definite term or task.

Bigger changes came into effect on November 1, 2020.

Payment on Termination

One of the biggest changes is when an employee gets their final pay once their employment ends. The Code used to say that if an employee quit, the employer had to pay within 10 days of the last day of work. If an employer terminated the employee’s employment with cause, the employer also had 10 days to pay up. If an employer terminated without cause, the employer only had 3 days to pay up.

Now, an employee is entitled to 30 minutes of rest if they work more than 5 hours but less than 10 hours.

Now, the Code gives more power to the employer. Regardless of how an employee’s employment ends (quits, without cause, with cause), the employer can choose from two periods to pay:

  1. 10 days after the end of the pay period in which the termination occurs, or
  2. 31 days after the last day of employment.

From an employer’s perspective, these periods likely address administrative and cash flows concerns that the previous rules may have caused. However, now an employee may be waiting a long time for monies owed to them! Say for example, an employee is paid monthly and is terminated right after payday, and the employer chooses the first option. That employee may be waiting around 40 days for their final pay cheque.

Deductions

Section 12 of the Code sets out what an employer may deduct from an employee’s earnings. Previously, the only deductions allowed were:

  1. statutory deductions (income taxes, CPP contributions, EI premiums)
  2. money owing by law or under a judgment or court order (such as garnishing accounts)
  3. amounts owed under a collective agreement (such as union dues)
  4. any other amount the employee agreed to in writing (with exceptions)

These deductions are still allowed, along with two new ones:

  1. overpayment of earnings due to a payroll calculation error (but only within 6 months of the overpayment)
  2. vacation pay paid in advance of an employee being entitled to it

For these new deductions, an employer must give an employee written notice beforehand. As well, these new deductions only apply to overpayments or advances paid November 1st or after. No retroactive deductions!

Averaging Arrangements

One of the biggest changes is when an employee gets their final pay once their employment ends. 

The old hours of work averaging agreements are now called averaging arrangements. Averaging arrangements average out an employee’s hours over a period for the purpose of calculating overtime. One of the biggest changes is shift in power from the employee to the employer. Now, an employer can “require or permit” an employee or group of employees to work an averaging arrangement. Employers can adopt an arrangement by giving two weeks’ notice and do not need employees’ consent first. Again, if a collective agreement applies, it governs.

The length of an averaging arrangement has increased from 12 weeks to 52 weeks. The arrangement must be in writing, include a schedule of daily and weekly hours of work, and does not need an end date. It can also say how an employer can change the schedule, including the amount of notice given to the employee. Based on the language of the new subsection 23.1(4), the notice period can be shorter or longer than the 24 hours’ notice usually required. Employees still need 8 hours of rest between shifts.

Rest Periods

Before November 1st, employees were entitled to 30 minutes of rest for every 5 hours worked. So if an employee worked a five hour shift, they got a 30-minute break (or two 15-minute breaks), paid or unpaid. For 10 hours, they got two 30-minute breaks.

Now, an employee is entitled to 30 minutes of rest if they work more than 5 hours but less than 10 hours. Breaks can still be split into two 15-minute periods and can be paid or unpaid. So an employee working a five-hour shift is not entitled to a rest period. But if they work 5 hours and 1 minute, they are. For employees who work more than 10 hours, they are entitled to two 30-minutes breaks. Again, a collective agreement may say otherwise and takes priority.

General Holiday Pay

The change here is calculating average daily wage for general holiday pay. First, vacation pay and general holiday pay are no longer included in the calculation. Second, an employer can choose from two periods for averaging an employee’s total wages over the number of days worked in the period:

For more information about employment standards in Alberta, see CPLEA’s FAQs and employment law information sheets.

  1. The 4-week period immediately before the general holiday. So if a holiday falls on a Monday, the period is the 28 days ending on the Sunday before.
  2. The 4-week period ending on the last day of the pay period immediately before the general holiday. So if the holiday falls on a Monday and the last pay period ended the Friday before, the period is the 28 days ending on the Friday.

No doubt this change makes it easier for an employer to calculate general holiday pay. However, the employer’s choice could affect an employee’s pay.

A Few Others

The provision setting out when an employer has to give notice of a layoff has been repealed. Presumably, an employer can give an employee a layoff slip effective immediately.

For “greater certainty”, subsection 34(2) has been added regarding vacation entitlements. When an employee is away on certain leaves (maternity, parental, reservist, compassionate care, death or disappearance of a child, critical illness of a child, long-term illness and injury and others listed in division 7.6 of the Code), the time away is included when calculating the employee’s years of employment to figure out how much vacation time they get.

For more information about employment standards in Alberta, see CPLEA’s FAQs and employment law information sheets.

CONSUMER | When the Doorbell Rings: Direct sales contracts

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Your doorbell rings at home. You take a peek out your window. Then the realization hits you: it’s someone going door to door trying to sell you something again. If you’re anything like my cat (or me), you promptly hide in another room until the seller is gone –unless they are selling cookies, of course. For those of you who are brave enough to answer your door, or are at least curious about the legalities of door-to-door sales, you should keep reading.

In Alberta, the legal term for sales of goods or services door-to-door is a direct sales contract. A direct sales contract is a contract for goods or services (or both) totaling more than $25. You and the seller negotiate or sign the contract somewhere other than the seller’s usual place of business. Unlike a contract that you negotiate or sign in a marketplace, auction, trade fair, agricultural fair or exhibition, you will typically negotiate or sign a direct sales contract in your own home.

The Consumer Protection Act is the main law that applies to direct sales contracts. There are also regulations that set out more rules. For example, licensing processes for direct selling businesses and types of sellers that do not need a licence.

In Alberta, the legal term for sales of goods or services door-to-door is a direct sales contract.Direct sales contracts are legal but must meet certain legal requirements. For example, it must include specific information to be valid, and the Government of Alberta must licence the seller as a direct selling business. Not all businesses need a direct seller licence though. For example, insurance businesses, mortgage brokers and sales of perishable foods fit under this exception.

TIP: You can check if a seller has a direct seller licence by searching for the business on Service Alberta’s website. You can also call the Consumer Contact Centre at 1-877-427-4088.

Under the Consumer Protection Act, direct sales contracts must include standard contract information such as you and the seller’s full name and address, the date and place where the contract was signed, etc. Most notably, the contract must include a statement of cancellation rights and, if the purchase is financed, a disclosure statement.

A statement of cancellation rights sets out when and how you can cancel the contract. It must be on the front of the contract. Alternatively, there must be a notice on the front letting you know where in the contract the statement is.

On the other hand, a disclosure statement sets out the terms of the loan agreement between you and the lender. It includes information such as:

  • Amount borrowed
  • Loan duration
  • Amount and frequency of payments
  • Interest rate
  • Any other fees charged
  • What security the lender is taking. This could be in the form of a mortgage or registration against personal property such as your vehicles, boats, trailers, etc.

Direct sales contracts are legal but must meet certain legal requirements.Okay, so let’s say you decide to answer your door. Before you let the person into your home, you should ask to see their identification card. The ID must show their name plus the name, address and licence number of the direct selling business they are working for. You should also call or check with Service Alberta to confirm that the seller is licenced. If you find yourself in a situation where you might want to purchase something from the seller, here’s a couple of quick tips to protect yourself:

  • Like with all other contracts, make sure you review the terms carefully before you sign anything.
  • Do not rely on the sales representative to tell you what the contract says.
  • Make sure that any terms you agreed to orally are also in writing on the contract.
  • Do not let the sales representative pressure you into buying right away. You can always say no or take time to think about the potential purchase.

Lastly, what happens if you have buyer’s remorse after entering into a direct sales contract? Well, there’s a short window to cancel it. You can cancel it in writing within 10 days (including weekends and holidays) after you receive a copy of the written contract. There are some exceptions to this rule – for example, you have one year to cancel it if the seller did not have the required licence or the direct sales contract does not include all required information.

TIP: Is a door-to-door seller trying to sell you a furnace, air conditioner, water heater, windows or energy audit? As of January 1, 2017, the Government of Alberta has banned these types of door-to-door sales. But if you invite someone to your home to discuss buying these goods or services, then the transactions are still allowed.

To learn more about door-to-door sales, including cancellation rights, go to our publication: Door to Door Sales…What You Should Know.

LAW & LITERATURE | Two Human Rights Heroes

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Photo from Pixabay

The year 2020 has been a time of great rupture and adversity. Around the globe, we have seen the rise of a large number of authoritarian, hard-right rulers who have demonstrated contempt for democratic values. Their actions have seriously undermined the fundamental rights of their own citizens, and demonstrated a callous disregard for refugees and stateless individuals. It is nonetheless a time when some in the legal community have remained steadfast in their commitment to the rule of law and to the rights of their clients.

The two brilliant human rights lawyers whose work I would like to highlight are British solicitor Gareth Peirce and Guatemalan human rights lawyer and activist Renata Avila. Both have represented and continue to represent Julian Assange in his case recently argued in an English court. The court will render its decision in January 2021 on his extradition to the U.S.A. Experts are referring to this case as the most significant challenge in a western nation in our lifetimes to the freedom of the press.

Gareth Peirce

Gareth Peirce is described as shy and opposed to publicity focussing on her accomplishments. Nonetheless, she is acclaimed as a brilliant and unrelenting human rights defender, who has been at the centre of some of the greatest legal fights of the past half-century to prevent or overturn injustices.

I treasure Peirce’s 2010 book, Dispatches From the Dark Side: On Torture and the Death of Justice, as a clear-eyed account of the mistreatment of suspects in the Bush/Blair War on Terror declared after the 9/11 attack. Peirce begins her book with the inspiring account of John Lilburne’s quest to maintain his rights in the face of oppression.

Peirce first came to prominence here in Canada with the release of Jim Sheridan’s 1993 film In the Name of the Father.Lilburne was an uncompromising Puritan who faced imprisonment on trumped up charges. He was brought before the dreaded Court of Star Chamber in England in 1637. Despite mounting pressures, Lilburne insisted on his right not to incriminate himself and the right to the basics of due process in the proceedings. He was a member of the radical group of Levellers who sought to remake English society based on equality. Lilburne endured two and a half years in the Fleet Prison – tortured, gagged and kept in solitary. The revolutionary Long Parliament largely vindicated his struggle for justice when they met in 1642. Its first act was to set him free, then to abolish the Star Chamber and finally, to adopt a resolution that Lilburne’s sentence was “illegal and against the liberty of the subject, and also bloody … barbarous and tyrannical.”

Pierce’s series of essays draw inspiration from Lilburne but also point to the shocking reality that we must fight anew to protect these fundamental rights in the 21st century. Many of the accused she helped defend were vulnerable Irish workers in Britain, during an era of hysteria on the part of officials and the public provoked by the actions of the IRA. She connects her clients’ plight to the situation of Muslims and Arabs in Britain post-9/11. These individuals have become the new ‘Irish’ to an often callous and indifferent government.

Peirce first came to prominence here in Canada with the release of Jim Sheridan’s 1993 film In the Name of the Father. The film is a docudrama, which uses some fictional elements to highlight complex legal proceedings. A small group of Irish men and women working as casual labourers in London are arrested for the horrific bombing of the Guildford Pub (in Surrey, just outside of London). Sheridan bases the Pierce’s series of essays … point to the shocking reality that we must fight anew to protect these fundamental rights in the 21st century.film on the memoir of one of these wrongly convicted individuals, Gerry Conlon. Conlon, played by Daniel Day-Lewis, was to serve 15 years for a crime he had no connection to whatsoever. Without unwavering belief in his innocence and voracious efforts to establish the truth about what the court determined to be coerced confessions, Conlon and the rest of the “Guildford Four” may never have been exonerated. Peirce is convincingly played by Emma Thompson (director Sheridan employed dramatic license to transform Peirce from investigating solicitor into a barrister, the better to dramatize the mighty effort to achieve a measure of justice). The film paints a sombre picture of the reality of prison life for Gerry and for his father, Giuseppe, who dies after 5 years in prison for a bombing he could not conceivably have been a part of.

Peirce went on to represent many others and succeeded brilliantly in overturning a number of convictions or military detentions. As the hardworking counsel outlines in her book, many of these cases involved members of the new “suspect community” in Britain – Muslims and Arabs. In her experience, “once you’ve made a community suspect, almost anything goes.”

Renata Avila

One of the other counsel representing Assange is the young Guatemalan human rights lawyer and digital activist, Renata Avila. Avila has had a number of high profile cases and has worked on a number of vital justice initiatives in the global south. She currently resides in Berlin and works for the World Wide Web Foundation, directing the Web We Want initiative. This aims to promote a positive, human rights-oriented agenda for internet users. The foundation promotes legal and policy reform particularly for countries in Central and Latin America and elsewhere in the global south. Avila is a regular legal advisor on diverse human rights issues, under the guidance of former Spanish justice Baltasar Garzon Real.

A concise summary of Avila’s position and the urgent need to defend Assange is found in her essay “Who is Julian Assange and What did WikiLeaks Do,” in the book In Defence of Julian Assange.One of Avila’s most significant assignments was the universal jurisdiction case, on behalf of Rigoberta Menchu Tum (the Nobel Peace Prize winner) and other victims in the Guatemalan Genocide case before courts in Spain. Renata has also worked with the Citizens Lab project at the Munk School of Global Affairs, University of Toronto. There she researched the dark impact various surveillance technologies can have in developing countries, including countries particularly impacted by the “war on drugs”.

One gets a sense of the accomplishments and concerns of Avila in a book she co-edited, Women, Whistleblowing and WikiLeaks. The book recounts the valuable work WikiLeaks has done in revealing the full extent of government malfeasance. A concise summary of Avila’s position and the urgent need to defend Assange is found in her essay “Who is Julian Assange and What did WikiLeaks Do,” in the book In Defence of Julian Assange.

Seeking Places of Hope

In these dark days, as alluded to in Peirce’s book (and a CBC Ideas episode on her, “Human Rights Under Attack: Gareth Peirce on the New Dark Age”), we must seek places of hope. Two such places are in the continually unfolding human rights work of these remarkable women, Gareth Peirce and Renata Avila.

HUMAN RIGHTS | Human Rights and Civil Liberties Implications of COVID-19 Mask Laws

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As the COVID-19 pandemic continues to affect the entire world, many governments have passed legislation requiring that face masks be worn in many public locations. This has resulted in claims that the mask requirements violate civil liberties. At the same time, there have been some incidents of individuals being confronted for not wearing masks, yet they have a legitimate exemption from the mask requirements.

Photo by Anna Shvets from Pexels

For example, the City of Calgary passed The Temporary Face Coverings Bylaw, which went into effect on August 1, 2020. It requires face masks in any indoor space the public has access to, including retail stores, shopping malls, recreation centres, churches and public common spaces in office buildings. The Bylaw provides several exceptions to the public face covering requirements:

  • Children under 2 years of age
  • People with underlying medical conditions or disabilities impacting their ability to wear a face covering
  • People who are unable to place, use or remove a face covering safely without assistance
  • People who are eating or drinking at public places that offer food or beverage services
  • People engaging in an athletic or fitness activity
  • People who are caregiving for or accompanying a person with a disability where wearing a face covering would hinder accommodating the person’s disability
  • People who have temporarily removed their face covering where doing so is necessary to provide or receive a service (for example, a visit to the dentist)

The Calgary Herald reported that a city survey done in August found 89 per cent of Calgary residents are complying with the bylaw.

Health officials have released evidence and opinions that wearing a mask can reduce the spread and potency of COVID-19, should one be exposed to the virus. Despite the exceptions, and the evidence from experts, there are people who object to wearing masks. Some of these people believe that the COVID-19 evidence is false.

While an adult is generally at liberty to take risks with their own health and safety, there are limits.There are claims that mandatory mask laws violate individual liberties. Section 7 of the Canadian Charter of Rights and Freedoms says that laws and government actions cannot violate one’s rights to life, liberty and security of the person except in accordance with the principles of fundamental justice. Thus, limits must not be arbitrary, grossly disproportionate or overbroad. While an adult is generally at liberty to take risks with their own health and safety, there are limits. Infringements of individual rights can be justified by a pressing and substantial interest. The government must show that the measures it is using are rational, reasonable in the context and proportionate to the affected individual freedom. Krajewska, Sjolin and Marjin argue that if there are exceptions to mandatory mask laws for those who have legitimate reasons, the limits should be reasonable and justifiable in the circumstances. Presumably, the exceptions to the Calgary Bylaw meet this requirement. The authors conclude:

In the context of a global health crisis, collective action to minimize the spread of the virus enhances everyone’s freedom. Declining to adopt mandatory masking leaves the burden on those who are already at risk. It’s also ineffective. At the end of the day, the virus will not care about philosophical differences. When it comes to mandatory masking, neither should we.

Another potential civil liberties restriction in the context of COVID-19 is the freedom of movement. For a discussion of this issue, see Myrna El Fahkry Tuttle’s LawNow article.

The government must show that the measures it is using are rational, reasonable in the context and proportionate to the affected individual freedom.There have also been incidents of individuals not wearing masks being accosted or refused service. Assaulting someone is potentially a crime and not an appropriate response to someone not wearing a mask. Landlords, employers and providers of services normally available to the public must follow human rights legislation. For example, if a person has a mental or physical disability that prevents them from wearing a mask, they cannot be discriminated against. Service providers must accommodate persons with disabilities to the point of undue hardship. Many human rights commissions have published policy statements on Discrimination, COVID-19 and Human Rights, such as the Alberta Human Rights Commission and the Ontario Human Rights Commission.

Human rights and civil liberties issues arise in many contexts, including in this time of COVID-19. Laws such as the Charter and human rights legislation govern the way Canadians and governments must conduct themselves. It is not usually safe to make assumptions about individuals and government policies without adequate information.

FAMOUS CASES | The Inuit Status Case

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It appears to me to be a consideration of great weight in determining the meaning of the word “Indians” in the British North America Act that the Eskimo were recognized as an Indian tribe by the officials of the Hudson’s Bay Company which, in 1867, exercised powers of government and administration over this great tract … It is clear that the Eskimo are classified under the generic term Indian.

– Inuit Status Reference, [1939] SCR 104 (SCC) at pp 109–10

The Inuit in Canada

An historically nomadic people, the Inuit began migrating into what is now Canada almost a thousand years ago​. First contact with Europeans was the arrival of Hudson’s Bay Company (HBC) traders from Europe at the end of the 1600s at an Inuit whaling camp on Hudson Bay. Inuit and HBC employees traded goods such as animal fat oils and metal knives and co-existed for decades despite some hostilities in the mid-1750s. Languages and cultural teachings were shared. The HBC-provided firearms changed how the Inuit hunted.

The Inuit and European cultures became more integrated through trade. The appearance in 1903 of the Canadian North West Mounted Police brought employment and other support, and with that, greater dependence on western ways. Today this people of storytelling, hunter-gathering, and common survival in the harsh Arctic climate resides mostly in Nunavut, in an area known in Inuktitut as Inuit Nunangat (“the homeland”). Numbering fewer than five thousand in 1867, the ​​Inuit population has grown to 65,000 according a Statistics Canada estimate in 2016. Canada is home to the largest population with smaller groups living in Alaska, Greenland and Denmark.

Just outside Inuvik, Northwest Territories.
Photo Credit: Dave Pettitt

Over the years, the federal government largely left the Inuit alone as a matter of law. This article describes the constitutional case that addressed the status of the Inuit in Canada.

The “Eskimo Case” in the Supreme Court of Canada

The Constitution Act, 1867 established Canada as a self-governing country and divided legislative authority over all matters in the country between the federal and provincial levels of government. “Indians, and Lands reserved for the Indians” were placed under federal responsibility but no mention was made of the Inuit in the Constitution Act, 1867. In 1876, the federal government enacted the Indian​ ​Act, with respect to First Nations, but the Inuit were overlooked.

In the late 1920s and early 1930s, a decline in trade with the HBC saw the Inuit in dire economic straits. As the HBC, Quebec and federal government continued to supply food and other resources to the Inuit, the question arose as to who would pay for it​. The Inuit had not entered into any treaty with the federal government. The question became: are the Inuit “Indians” under the Constitution Act, 1967 and, accordingly, under federal jurisdiction?

The case reached the Supreme Court of Canada as a reference from the federal government in mid-1938. Inelegantly titled, ​Reference as to whether “Indians” includes in s. 91 (24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, the issue took ten months to be decided. The evidence considered was primarily records of how the Inuit were historically viewed by the HBC and governments. Even before Confederation, the HBC considered all Indigenous peoples to be “Indian Tribes”. Along with the Blackfoot, Sioux and Algonquins were the “Esquimaux”. Other accounts of contact from early governors, missionaries and clergymen referred to the Inuit as “Esquimaux Indians”.

In 2001, Kiviaq sued the federal government, asking it to define Inuit status in Canadian law and confer upon the Inuit the same rights as First Nations under the Indian Act​.The North West Territory and Rupert’s Land – where the Inuit were living – were admitted into the Dominion of Canada by 1870. The federal Parliament enjoyed the “full power and authority to legislate for the future welfare and good government” of these territories, the population of which was 93% Indigenous at the time.

The Supreme Court was unmoved that the Inuit had never been under protection of the Crown in the same way as treaty Indians or that, despite the Inuit sharing Aboriginal status, they were genetically and culturally unrelated to Indians. The Court unanimously concluded that the Inuit came within the taxonomy of constitutional “Indian”. This placed them under the authority of the federal government​. [As an aside, the Supreme Court of Canada, employing a different, more culturally-sensitive approach and reasons, rendered the same conclusion for the Métis in 2016.]

Inuit Status in Canada Post-1939

After being assigned legislative responsibility for the Inuit, the Government of Canada seemed reluctant to create the same dependency relationship that had developed with First Nations. It has enacted no special Inuit legislation.​

The 1982 Canadian Charter of Rights and Freedoms corrected the Supreme Court’s 1939 error. It expressly identified the Inuit as an “aboriginal people” in Canada, distinctive from First Nations and Métis (articles 25 and 35). The original 1867 provision about “Indians and Lands reserved for the Indians” now cannot be amended without first consulting with, among others, Inuit representatives at a constitutional conference (article 35.1).

The Court unanimously concluded that the Inuit came within the taxonomy of constitutional “Indian”.Over time the Inuit became more politically engaged and aware that they have not benefited from the special status and privileges of their First Nations counterparts.

The federal government created Nunavut as Canada’s newest territory in 1991. It granted ownership of the land and paid $580 million to the Inuit. In return, the Inuit signed an ​extinguishment clause – whereby any and all historical Inuit claims against the federal government were at an end. However, this did not dissuade one successful and prominent Inuit man in Edmonton. Kiviaq still sought to extend First Nations’ rights and benefits to the Inuit.

Kiviaq (full Inuit names are usually one word) was born in 1936 in Chesterfield Inlet, a hamlet on the western shore of Hudson’s Bay. His birth parents were both Inuit. He was removed with his sister and mother (Kumanaq) by a white RCMP officer (Charles Raymond Ward), renamed David Charles Ward and raised in Edmonton in the English language.

David, beaten by his stepfather and bullied by children at school, took up boxing and became a Golden Gloves champion. He also excelled at football, was elected to Edmonton city council and later served as a popular radio talk show host. In Edmonton in 1983, he became the first Inuit lawyer in Canada. He then won a legal battle to revert to his single-word Inuit name given at birth – Kiviaq.

In 2001, Kiviaq sued the federal government, asking it to define Inuit status in Canadian law and confer upon the Inuit the same rights as First Nations under the Indian Act​. The case was not resolved before the former boxer and lawyer Kiviaq died of cancer in Edmonton at age 80 in April 2016.

YOUTH | Money, Money, Money!

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Maybe you have a part-time job. Maybe your parents pay you an allowance. Maybe you make money shoveling snow or cutting grass. In any case, you’ve got money!

Opening a Bank Account

First step, where do you put this money? Have you outgrown your piggy bank? Maybe a bank account would be more appropriate!

If you are under the age of majority, some banks require your parent or guardian to be a joint account holder on the account.Banks in Canada must follow certain laws. Some banks are governed by Canada’s Bank Act – generally those with locations across the country. Banks with locations in one province must follow provincial banking laws. For example, the ATB Financial Act governs ATB Financial bank in Alberta.

Credit unions are similar to banks except that they are non-profit institutions. Customers must first qualify as a member and then become owners, meaning they share in any profits the credit union makes. The Bank Act regulates some credit unions. Provincial credit unions are regulated by provincial laws, such as Alberta’s Credit Union Act.

The Bank Act says that any natural person (an individual, not a company) can deposit money in a federally-regulated bank, regardless of whether they are allowed by law to enter into contracts. The underlined part is important. Canadian common law (judge-made law) says that individuals under the age of majority (in the province where they live) or who do not have mental capacity generally cannot enter into contracts. There are exceptions. Contracts are agreements between you and another person where you give each other something. But the Bank Act makes it clear that a minor can open a bank account even if they cannot enter into a contract.

Photo by Skitterphoto from Pexels

If you are under the age of majority, some banks require your parent or guardian to be a joint account holder on the account. A joint account holder has the same rights to access your money and manage your account as you do, unless the bank allows for different controls. Some banks will let you open an account on your own if you are at least 12 or 13.

For example, let’s canvas a few banks and credit unions, both in Alberta and across Canada:

What about a credit card? Well, a credit card is a contract that is not to be taken lightly. To get a credit card on your own, you must be the age of majority in the province or territory where you live. In Alberta, that’s 18 years. If you are under the age of majority, the bank will require that your parent or guardian co-sign for the credit card. If you do not pay the money back, the person who co-signed will be responsible for repayment of all outstanding balances and debts.

Check with different banks about their rules for youth and the benefits of their youth accounts.

Filing Taxes

Have you heard adults in your life complaining about having to pay taxes? The government collects taxes on different things – income, goods and services (GST), property and more – to help pay for government services, such as healthcare facilities, education, courthouses, registry services, etc.

Filing a tax return means to report your income (and other amounts you earn) each year to the government. Income tax is tax on employment income. Employment income is amounts you receive as salary, wages, commissions, bonuses, tips and gratuities. Your employer deducts this tax from your pay cheque, along with amounts for Employment Insurance (EI) and Canada Pension Plan (CPP) contributions. By law, your employer must collect income tax and deductions. Look at your pay cheque to see if your employer is deducting these amounts.

Both the federal government and provincial governments collect income taxes – the federal government under the authority of the Income Tax Act and provincial governments under provincial laws, such as the Alberta Personal Income Tax Act. The amount of the tax varies by government and by income levels (called tax brackets).

Filing a tax return means to report your income (and other amounts you earn) each year to the government. The deadline to file taxes is April 30 of each year. You may be eligible for deductions (amounts you can subtract from your income) or credits (amounts subtracted from the amount of income tax you owe). The most common tax credit is the basic personal amount tax credit.

Employment income is amounts you receive as salary, wages, commissions, bonuses, tips and gratuities.Both federal and provincial governments have a basic personal amount tax credit. The effect of the tax credit is that individuals who earn income equal to or less than the basic personal amount (BPA) get back the income taxes they paid. Individuals who earn more than the BPA get a credit for an amount equal to the BPA multiplied by the tax rate for the lowest tax bracket. Math? I know, my brain hurts too. For 2020, the federal BPA is $13,229 for individuals with net income of $150,473 or less. The BPA decreases for individuals who earn more than that, with the lowest BPA being $12,298 for individuals with net income greater than $214,368. The Alberta BPA is $19,369. Individuals can apply both the federal and provincial BPA tax credits to lower the amount of taxes they owe. ATB Financial has an article called “Understanding your personal taxes in Alberta” with more detailed information.

So, do youth have to file tax returns? The Canada Revenue Agency’s website has a list of individuals who must file tax returns. If your employer has deducted income tax from your pay cheques but you make less than the BPA (combine the federal and provincial BPAs), then you may get back the taxes you have already paid. That’s a reason to file!

Taxes can be confusing! That is why accounting programs and accountants exist to help us! For a fee of course. Around tax season, there are also tax clinics that help people file their taxes for free. For more information on taxes generally, see the Government of Canada’s website and your province’s website.

Do you have other questions about laws that apply to youth? Check out CPLEA’s Law FAQs website for more information.

NOT-FOR-PROFIT | Model Crowdfunding Statute Released

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The Uniform Law Conference of Canada (ULCC) is a body that develops model legislation that provinces can adopt to create a consistent and harmonious legal framework across jurisdictions. It has now provided a roadmap on the issue of crowdfunding, and more specifically internet fundraising. This is timely and helpful.

The 2005 ULCC Uniform Charitable Fundraising Act (UCFA) did not cover activity of non-charities. So, a decade ago the ULCC initiated a project on regulation of fundraising not falling under the UCFA.

The effort led to release of the 2011 Uniform Informal Public Appeals Act (UIPAA). Saskatchewan adopted a version of the UIPAA. It was used in resolving problems related to administration of the Humboldt Broncos Memorial Fund.

The Uniform Law Conference of Canada (ULCC) is a body that develops model legislation …The rapid rise of online crowdfunding over the last decade, however, lead to a need to revisit some of the provisions and update some of the definitions from 2011. Developments in case law and a U.S. effort to craft model crowdfunding legislation were also factors prompting a new look at the UIPPA.

Informed by these considerations, the ULCC has updated and renamed the 2011 model statute. It is now called the Uniform Benevolent and Community Crowdfunding Act (UBCCA) and was released in August. It is available online.

The UBCCA, like its predecessor, deals with spontaneous or ad hoc public appeals by individuals or groups for funds for a specified purpose, and the trust obligations that can arise from such appeals. The concept of a trust arising from any appeal made within the scope of the UBCCA is central to the model legislation.

The UBCCA is intended to cover appeals for humanitarian or public purposes, rather than those of a private nature. The approach taken in the model statute lessens the distinction between appeals for charitable and non-charitable purposes, essentially by extending the mechanisms used in the charitable realm to non-charitable appeals. But these changes only apply to appeals that fall within the model statute.

Photo by Markus Winkler from Pexels

Not covered by the UBBCA are appeals:

  • made by some entities (qualified donees under the federal Income Tax Act – this includes registered charities – and their intermediaries);
  • for certain ends (e.g. partisan politics, investment); or
  • with particular features (where the funds are intended for the organizer, or a contributor is rewarded with more than public recognition or a perk of token value).

The legislation provides default rules and procedures for appeals within its scope. These can be supplemented or replaced by documents or provisions put in place by an individual or group organizing an appeal.

The legal term “trust” is more known than understood. Trusts can be established in a number of ways, but most commonly they are created by a trust document. Importantly, they can also arise through circumstances and representations. As it is often the case that public appeals are made with no or only partial documentation, an important role of the model legislation is to clarify that a trust relationship is created by the appeal within the scope of the UBCCA.

The model statute makes those directing “management and disbursement” of an appeal fund (or those with authority to do so) trustees. This has implications both for dealings with donors and for stewardship of funds raised. The model statute outlines various obligations, such as the need to maintain a segregated bank account for the funds, stemming from the proceeds of an appeal being a trust.

The UBCCA is intended to cover appeals for humanitarian or public purposes, rather than those of a private nature.Additionally, powers of public appeal trustees to administer funds and of the courts to oversee fund administration are set out in the UBCCA. Historically, under what is known as cy-pres power, courts have had the authority to make schemes where the purpose of charitable trust cannot, or cannot any longer, be fulfilled. This allows the court to substitute a similar purpose for the original purpose.

It also allows the courts to deal with surpluses. The model statute expands this authority to trusts for a non-charitable purpose and sets a threshold for when court approval for distribution of a surplus is required. As well as providing for expanded court oversight authority, the model statute also refines certain other aspects of existing law on UBCCA non-charitable purpose trusts.

Various means for dealing with surpluses are set out in the model legislation and apply based on whether the amount in issue exceeds the court threshold and was generated for a charitable or non-charitable purpose and based on the documentation in place.

The UBCCA provides for the ability of various persons or bodies, including (in a departure from existing law) donors, to go to court to enforce the trust.

Importantly, the UBBCA addresses what court has oversight authority when the appeal takes place across jurisdictions. Determining appropriate jurisdiction is particularly crucial given the rise of internet crowdfunding platforms.

… an important role of the model legislation is to clarify that a trust relationship is created by the appeal within the scope of the UBCCA.Another area of abiding concern was where organizers want to change the terms of the appeal over the course of a campaign. The UBBCA allows this in limited circumstances:

  • to deal with disposition of an unforeseen surplus; and
  • to replace a fundraising goal that proves unrealistic.

In the first case, disposition of the surplus must accord with the s. 10 provisions of the UBCCA on that topic. In the second case, the spirit of the new goal must accord with that of the original goal.

Finally, the UBBCA features a Schedule setting out a Trust Declaration template to encourage organizers to document in writing the terms of their appeal.

With information on online crowdfunding initiatives now so often a feature of news and social media about community and personal disasters or hardships, the ULCC work on this new model statute should be welcomed and commended. Provinces should be encouraged to adopt the UBCCA as quickly as feasible.

HAVE YOU HEARD? | Personal Debt Resources

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Access to Justice Week

Did you know?! October 26th to October 30th, 2020 is National Access to Justice Week! Look for amazing initiatives underway across our country, including here in Alberta.

We want to hear from you!

What do you love about LawNow? What do you wish was different? Please take a few minutes to complete a short survey about LawNow.

Help with Debt Alberta

Are you or someone you know struggling with personal debt? And not sure where to turn? Check out our new Help with Debt Alberta resource. This webpage is for Albertans struggling with debt and looking for help. Answer questions to find the help you need.

New & Updated CPLEA Resources

We have updated our resources on personal debt. Check them out!

Looking for more information? Visit CPLEA’s website and YouTube channel to view all of our resources.

EMPLOYMENT | Enhanced Job Security for Federal Workers

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It is an outcome that is anchored in parliamentary intention, statutory language, arbitral jurisprudence, and labour relations practice. To decide otherwise would fundamentally undermine Parliament’s remedial purpose.

– Wilson v Atomic Energy of Canada Ltd., 2016 SCC 29 at para 69

Photo from Pixabay

Employment security is something every worker is concerned about, especially during a pandemic. It is generally accepted that unionized workers enjoy more security than their non-unionized counterparts do. And public sector workers are better protected than private sector workers are.

The federal government regulates only about 6% of all Canadian employees. They may be directly working for the federal government or in one of the federally regulated industries such as telecommunications, shipping, aeronautics, railroads, banking and atomic energy.

Most of these federally regulated employees are unionized. But some workers in banks, telecommunications companies, airlines, Crown corporations and other federally controlled employers are non-unionized. In 1978, Parliament amended Part III of the Canada Labour Code to add ss. 240 to 246 about “unjust dismissal.” These amendments granted unionized federal workers the right to written reasons for dismissal and to complain to an adjudicator if they believe they have been dismissed without just cause. This is an expansion of their collective agreement rights. An adjudicator finding the dismissal unjust can order the worker reinstated or compensated.

This article describes how the Supreme Court of Canada recently decided that these Canada Labour Code extended protections from 1978 apply to non-unionized workers as well. Federally regulated employees without unions and collective agreements share unionized employees’ statutory rights.

Wilson v Atomic Energy of Canada Ltd

In 2005, Joseph Wilson began work as a Senior Buyer/Order Administrator for Atomic Energy Canada Limited (AECL), a federally regulated Crown corporation. He was dismissed after more than four years of employment despite having a clean disciplinary record. He claimed he was dismissed because he blew the whistle on improper procurement practices at the company. Mr. Wilson’s employer dismissed him without cause and gave him a large severance package. The employer was of the view that it could terminate Wilson at any time without cause since he “was provided a generous severance package that well exceeded the statutory requirements” and was not protected by a collective agreement.

The unjust dismissal scheme in the Canada Labour Code ensures federal non-unionized employees cannot be dismissed without cause.The adjudicator ruled that AECL could not dismiss Wilson with severance payments alone.

In the Supreme Court of Canada

Six of the Supreme Court judges concluded that the adjudicator was reasonable (indeed, correct) in his interpretation of the 1978 Code amendments. They said the unfair dismissal process intended to provide these workers with a method of challenging their dismissals, because battling their employers in courts was very costly and burdensome.

They referred to the Parliamentary intent expressed by the then Minister of Labour Munro when he originally introduced the amendments. Munro said the provisions would provide unorganized workers with some of the “minimum standards” in collective agreements given to organized workers. He added:

The intent of this provision is to provide employees not represented by a union, including managers and professionals, with the right to appeal against arbitrary dismissal – protection the government believes to be a fundamental right of workers and already a part of all collective agreements.

The three dissenting judges noted: “a dismissal is not per se unjust, so long as adequate notice is provided.” They viewed the majority interpretation as an “absurdity,” ensuring “two identical classes” of employees [non-unionized public and private sector] will be handled differently “based on an arbitrary or irrational distinction.” They said Parliament did not mean to change the relationship between these employees and employers “simply by adding the unjust dismissal procedure to the Code.” There is no definition of an “unjust dismissal” in the Code.

In 1978, Parliament amended Part III of the Canada Labour Code to add ss. 240 to 246 about “unjust dismissal.”The dissenting judges referred to provincial schemes that answer this question and “they have done so expressly . . . had Parliament intended to prohibit without cause dismissals, it would have done so by using such clear and unambiguous language.”

Conclusion

The unjust dismissal scheme in the Canada Labour Code ensures federal non-unionized employees cannot be dismissed without cause. Severance payments are not an option for federally regulated employers to justify terminating employees without cause. Non-unionized workers – unprotected by collective agreements – enjoy recourse and protections comparable to unionized employees.

Federally regulated employers must show good cause to dismiss employees. These employees may also have the right to progressive discipline before being dismissed.

Under section 240(1), this protection is available only to those who have worked at least 12 consecutive months and if they are dismissed for reasons other than lack of work or restructuring.

The case represents a big win for employee rights in Canada and a challenge for federal employers who seek to reduce their workforces. It continues a recent trend of the Supreme Court strengthening labour rights of workers to unionize and strike.

LAW & LITERATURE | Richard Wright’s Native Son: Dread in Chicago’s desolate South Side

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Photo by Kelly Lacy from Pexels

As I write, impassioned protests in Kenosha and elsewhere attest to the anguish experienced by many Americans at the racialized violence meted out to African Americans. The incomprehensible shooting in the back of Jacob Blake, father of three, by a white police officer is the latest in a string of recent shootings and assaults. Shocking levels of violence by whites against black Americans is in fact a recurring theme in U.S. history.

One of the first significant protest works to explore racism, oppression and violence against black Americans is Richard Wright’s 1940 novel, Native Son. Wright was a black American who fled the Jim Crow south (Mississippi) to inhabit what must have seemed a new form of prison on the South Side of Chicago in the 1930s. He interrogates the racist practices of his society from the standpoint of its victims. Never before had such a threatening, dangerous character as Bigger Thomas been selected as the central consciousness who will lead the reader through a lengthy novel. The three parts – Fear, Flight and Fate – reveal in economic terms the stark nature of the predicament and the powerful response of the main character.

Major critic Irving Howe summed up the novel’s significance by claiming it changed American culture forever. Howe stated that Wright’s work had made impossible a repetition of the old lies, and brought into the open the hatred, fear and violence that have crippled the culture. The Modern Library’s list of the best 100 novels ranked Native Son as No. 20. As a formidable, path-breaking protest novel, though, it is easier to value it as an important social event and provocative exploration of the vexing problems of race relations in America than it is perhaps to endorse its brilliance and greatness as a work of art.

Never before had such a threatening, dangerous character as Bigger Thomas been selected as the central consciousness who will lead the reader through a lengthy novel.In this Black Lives Matter era, this novel provides readers an unrelenting look at the violence that the forces of law unleash on the black characters who emerge from their one-room apartments and do life in conditions little better than those faced by actual prisoners. The opening chapter is a perfectly executed description of the stunted lives of Bigger, his mother and his two siblings, under the pressure of hunger and despair. It is twenty year-old-Bigger, badgered by his mother to find employment or lose welfare benefits, whose toughness and tenacity is needed to once again battle a huge black rat menacing the Thomas family. The author gives a vivid and authentic account of the desperate struggles in which his protagonist and others in the black community of Chicago’s South Side must engage.

Bigger is encouraged to take employment with a wealthy, privileged white family: the Daltons. His crossing the color line creates in him a palpable sense of dread at the prospect of saying or doing the wrong thing. While escorting home the daughter, Mary, after she had a night of heavy drinking, tragic circumstances result in her accidental death at his hands. A sequence of cascading actions leads Bigger to commit crimes and attempt various deceptions to escape capture.

The most remarkable scenes in the novel depict the harsh circumstances of the black community and the links with the dominant class – whites like Mr. Dalton. We learn Mr. Dalton is more than an impeccable liberal who donates to worthy charitable causes. He is also a slum landlord who enforces segregated hosing through restrictive covenants and who owns the apartment complex Bigger’s family lives in. Further, Dalton charges the vulnerable tenants seemingly unconscionable rent.

Dalton is one of several characters we meet in the third part of the novel – the trial of Bigger for two murders as well as the presumed rape of Mary. Bigger’s counsel, Max, effectively draws out the predatory nature of Dalton’s commitment to market fundamentalism in cross-examination. Dalton purports to be compelled by some iron law of capitalism to charge his stiff rents. The testimony of other witnesses contributes to the portrait of economic injustice and staggering levels of racial discrimination.

One of the first significant protest works to explore racism, oppression and violence against black Americans is Richard Wright’s 1940 novel, Native Son. Max is an elderly Jewish counsel with the Communist-backed Independent Labor Office who takes on Bigger’s apparently hopeless defence pro bono. He appears to me to have employed a rather risky strategy. Many of the submissions in closing argument at trial appear to underpin a radical political critique of the type of society that would create the accused. The submissions do not seem particularly well judged as an attempt to engage the judge’s sympathies (noting he is most unlikely to share the radical views of counsel). However, the efforts of Bigger’s lawyer do link to central themes emerging from the events that have led to the crimes in question. Max’s description of Bigger’s unfortunate life assists in the realization that this young man’s life was, in one sense, a crime waiting to happen. The accused is less someone whose fate is to be determined based on an individualized assessment than he is a symbol. Precisely what is he a symbol of? Perhaps of the depths with which American society can force a black youth – denied a proper education and any opportunity for hope – to descend to.

The novel also offers some engaging arguments for and against the use of the death penalty and incorporates references to other leading trials of the era. Wright makes good use of the shocking trials know as the Scottsboro trials (1931-37). In those cases, the state of Alabama was determined to prosecute nine young black men for the rape of two white girls aboard the top of a freight train, no matter how many miscarriages of justice the state had to keep committing to succeed. In the case of Bigger Thomas, Wright has attempted to depict a very different scenario. His protagonist becomes a figure who can stand as the logical counter to the immoral violence of 1930s law as it applied to black Americans.

I conclude that Native Son is indeed a must-read. I do remain ambivalent about a few of the artistic choices Wright made, the most controversial being telling the tale through the consciousness of such a thoroughly unpleasant and violent character as Bigger. (One should remember as well that this was his first novel.) Some readers will not buy into Bigger being the symbol who brings together the various strands of the author’s radical critique. However, no reader will fault Wright’s courageous attempt at an autopsy of an unhealthy and divided society.

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