Members of our firm regularly act as employment and labour law counsel on a wide variety of issues relating to the acquisition, divestiture and restructuring of businesses, including:

• Due diligence
• Identification and assessment of employment and labour risks, liabilities and obligations
• Identifying cross-border and inter-jurisdictional efficiencies
• Negotiating employment and labour aspects of the transaction
• Drafting representations, warranties and covenants
• Negotiating and drafting employment offers and contracts
• Drafting retention agreement
• Coordinating employment and labour counsel in all other parts of the world

In our legal system the mere fact that the government is the government does not give it unlimited right or power. Administrative law deals with the limits the law places on government activity and the remedies available when those limits are exceeded.

The team at Sherrard Kuzz LLP is involved in every aspect of administrative law as it relates to the workplace. We assist our clients to understand their rights and obligations within the context of employment and labour legislation, and navigate toward their business objectives. This is significant given that the employment relationship is among the most highly regulated in Canada. Common examples of employment and labour legislation include: employment standards, human rights, occupational health and safety, privacy, labour relations, workplace safety and insurance, etc. There are also many others that indirectly affect the employment relationship.
 

Members of our team regularly provide strategic employment and labour law advice to employers – foreign and domestic – commencing operations within Canada, or carrying on business in multiple jurisdictions.

In most cases, the overarching objective is to design human resources strategies that maximize opportunities within each local jurisdiction in accordance with prevailing employment and labour laws, while at the same time achieve an overall, global human resources strategy.

This is a significant objective because within Canada, the power to regulate employment and labour relations is held primarily by the respective provinces and territories. Federal power over employment and labour relations extends only to a limited number of industries including inter-provincial transportation (i.e., long-haul trucking, railways, airlines, etc.), telecommunications (i.e., telephones, television, radio, internet, etc.), postal services (i.e., Canada Post, inter-provincial couriers, etc.), banking and federal government services. All other businesses fall under the authority of the respective provincial / territorial governments and legislation (e.g., the Ontario Employment Standards Act,Ontario Human Rights Code, Ontario Labour Relations Act and, Ontario Occupational Health & Safety Act, etc.).

Consequently, in the majority of circumstances an organization considering carrying on business within more than one Canadian jurisdiction must be aware of the different employment and labour laws in each province and territory.

To assist our these employers, members of our firm regularly provide comprehensive, federal and province-by-province analysis of employment and labour law legislation, and strategic advice regarding compliance. This includes:

• Providing comprehensive advice regarding “doing business as an employer in Canada”.
• Developing workplace policies, employment agreements and termination precedents (see also Executive Compensation and Employment Contracts).
• Providing strategic advice in respect of the exposure to being unionized in each jurisdiction (see also Employee Relations).
• Designing compensation and benefit packages.
• Providing day-to-day employment advice in respect of a wide range of employees from hourly labourers to CEOs.

To ensure that our clients' needs are met, wherever they do business, we have developed relationships with local counsel in every province and territory throughout Canada, and throughout the United States and Europe.

(i) Worklaw® Network

Our commitment to outstanding client service includes our membership in Worklaw® Network, an international network of management-side employment and labour law firms, with offices throughout North America and Europe. Membership in Worklaw® Network is by invitation only, and Sherrard Kuzz LLP is Canada’s only member.

Worklaw® Network offers a collective resource of employment and labour expertise that is unmatched, including more than 350 lawyers all of whom practice exclusively in employment and labour matters representing employers. Worklaw® Network firms share substantive work product, creative strategies and other information to add value in solving problems and handling matters.

Every Worklaw® Network firm is a local firm with strong ties to the local business community where employers have operations. Affiliate offices are located in: Alabama, California, Colorado, Florida, Georgia, Hawaii, Illinois, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, New York, Ohio, Ontario, Oregon, South Carolina, Tennessee, Texas, Utah, Washington, Wisconsin, Austria, Belgium, Germany and the United Kingdom.   www.worklaw.com

(ii) Partnerships Across Canada

In addition to the Worklaw® Network, we have developed relationships with local counsel in every province and territory throughout Canada.  We know that our clients expect the same level of service from our regional partners as they receive from Sherrard Kuzz LLP and we ensure that the service and advice provided by local counsel is at the same consistently high level that clients receive from us.  We have known, and worked with, our regional partners for many years and are confident in their ability to exceed our clients' expectations.
 

In recent years absenteeism issues have become increasingly complex due to the interaction of factors such as disability, religion, human rights and others. Accordingly, while it is true that unauthorized failure to attend for work in a regular and reliable fashion is a breach of the employee’s workplace obligation, the appropriate employer response is not always straight-forward.

The professionals at Sherrard Kuzz LLP understand the legal and practical implications of attendance management. We regularly assist employers to design, implement and administer absenteeism control programs to reduce both:

• Culpable absenteeism (i.e. an absence without an acceptable excuse), and
• Non-culpable absenteeism (i.e. an absence due to a medical condition, pursuant to the Emergency Leave provisions of the Employment Standards Act, etc.).

Our lawyers also appreciate that an effectively managed workforce requires an effective disability management strategy, and that early intervention with employees who are absent from work has proven rewards. As such, we assist our clients to:

• Understand medical information
• Implement strategies to elicit the most useful medical information
• Assess medical information in the context of their own workplace
• Design and implement Return to Work programs
• Ensure that absent employees participate in Return to Work programs

We also regularly assist clients to:

• Design appropriate strategies to effectively manage short and long-term disability insurance claims
• Co-ordinate with insurance carriers to ensure that our clients’ rights are protected

Our lawyers appear before all levels of the Ontario Courts, Federal Court of Canada and at the Supreme Court of Canada on a wide variety of matters related to employment and labour law. This includes:

• Wrongful dismissal litigation
• Employment related commercial litigation
• Injunctive proceedings (i.e. commencing proceedings on behalf of a client where there has been a breach of an employment contract such as a non-competition or non-solicitation clause, on behalf of a client defending against such an allegation, or in respect of a strike or lock-out)
• Judicial review of the decisions of administrative tribunals and arbitrators
• Appellate proceedings

At Sherrard Kuzz we appreciate that the need for strategic and proactive legal advice does not end when collective bargaining has concluded and an agreement has been signed. Employers are frequently confronted with complex issues arising from the interpretation and administration of the collective agreement.

We regularly assist clients to:

• Understand the impact of collective agreement language
• Design strategies to meet operational initiatives while complying with collective agreement language
• Plan ahead for the next round of collective agreement negotiations
• Manage grievances in a proactive and effective manner

The professionals at Sherrard Kuzz LLP are also expert at representing clients throughout the arbitration process. (see also Grievance Arbitration)
 

Collective bargaining is a fundamental aspect of the practice at Sherrard Kuzz LLP.

Our team regularly provides advice to employers in both the private and public sectors on collective bargaining strategy and drafting collective agreement proposals. We maximize our clients’ results by:

• Assisting in the preparation for first and subsequent rounds of collective bargaining by:
• Sourcing economic information
• Sourcing and assessing recent collective agreements within the same or related sector, including those of competitors and recently signed by the trade union with which our client is dealing
• Anticipating trade union strategy
• Analyzing the impact of collective agreement language on future plans
• Establishing strategy to achieve desired outcomes
• Ensuring legal compliance
• Acting as company spokesperson and/or as a support member of a client’s negotiation team
• Achieving the best collective bargaining agreement available
• Ensuring our clients’ interests are protected throughout the bargaining process

We have considerable experience assisting clients to design and implement compensation and benefits plans that attract and retain top-notch personnel, while at the same time maximize our clients’ flexibility to respond to economic circumstances. (see also Executive Compensation and Employment Contracts)
 

Sherrard Kuzz is recognized as a leading provider of strategic advice and effective employment and labour relations representation within the construction industry.

We have a wide breadth of expertise working within the construction industry’s unique legislative framework, and are familiar with the complex issues, interests, relationships and key players in all trades.

We assist all types and sizes of employers including employer associations, general contractors, developers, builders and subcontractors. We represent their interests in a wide variety of proceedings, including but not limited to:

• Collective Agreement Negotiations (with individual employers and/or employer associations)
• Day-to-day Administration of the Collective Agreement
• Grievance Referrals
• Jurisdictional Disputes
• Labour Board Proceedings
• Legislative Communication Strategies
• Occupational Health and Safety
• Preparation for and Representation at Interest Arbitrations
• Sale of Business/Related Employer Applications
• Strike Management and Injunctive Proceedings
• Strike Preparation
• Trade Union Certification Applications
• Workplace Safety and Insurance

We regularly advise employers on the preparation of employment contracts at every level of employment and with the appropriate degree of complexity and sophistication.

We appreciate that a skillfully prepared written employment contract can allow an employer and employee to identify with certainty and precision their obligations to one another during the course of the employment relationship and at the time of its conclusion. Particularly when the relationship is concluded a written employment contract is an employer’s most effective tool to significantly limit liability.

Written employment contracts are also particularly useful for senior executives and other employees whose compensation arrangements are unusual or complex (see also Executive Compensation). We are also skilled at drafting other employment related documents such as non-solicitation agreements, consulting and independent or dependent contractor agreements.
 

A hallmark of the practice at Sherrard Kuzz LLP is assisting clients to develop strategies and implement practical programs to improve and motivate their workforces and retain top performers. In our experience, a common by-product is the creation or maintenance of a union free workplace.

Our training programs are unlike anything else in Canada. They are multi-faceted, original and designed to have direct and immediate application in the workplace. We customize each and every program to meet and exceed the needs of our clients, including for example: interactive seminars; self taught training material; workbooks and handouts; and situational analysis. We always look for opportunities to enable our clients to take over the training directly, so that their own leaders become more highly skilled and knowledgeable (see also Management Training). Workshop topics have included:

• The Motivated Workforce
• Recruitment and Retention of Talent
• Best Practices in Hiring and Terminating
• Leadership Skills and Practices for Supervisors and Managers
• Effective Complaints Management
• Effective Progressive Discipline
• Attendance Management
• Effective Performance Appraisals

We are often asked by our clients for our assistance drafting and refining job descriptions and interviewing and screening prospective employees. Typical areas where our advice is requested include: questions permitted or prohibited under human rights legislation, criminal records checks, reference checks, drug and alcohol testing, psychological screening, and avoidance of wrongful dismissal claims when preparing or changing job descriptions.
 

Employment Standards legislation is among the most important governing the employment relationship. We regularly represent and advise our clients on issues relating to Part III of the Canada Labour Code or provincial employment standards, such as the Ontario Employment Standards Act, and have extensive experience appearing before the appropriate boards and bodies.

We assist clients to draft employment policies and procedures that comply with employment standards legislation, and to find significant efficiencies in the design and implementation of payroll and scheduling practices. We also provide complete and comprehensive representation and advice during employment standards audits and investigations.

We advise clients on issues such as:

• Hours Of Work
• Minimum Wages
• Overtime
• Public Holidays
• Vacation Pay
• Leaves of Absence (including Pregnancy, Maternity and Parental Leave)
• Successor Employer Obligations
• Mass Termination and Layoff
• Group Termination of Employment
• Conclusion of Employment (including Termination and Severance Pay)
• Successor Employer Obligations
• Liability of Directors and Officers

Successful businesses must attract, retain and motivate talented and dynamic employees in fiercely competitive markets. The design, implementation and administration of effective compensation and benefits arrangements play a key role in achieving these goals. Establishing arrangements, whether individually or across an entire organization, has become increasingly complex taking into account domestic and foreign tax laws, employment laws, securities disclosure and compliance requirements.

At Sherrard Kuzz LLP we partner our expertise in employment law with experts in pensions and benefits, securities, taxation and corporate governance and regulation.

We help our domestic and multinational clients create innovative and tax-effective compensation and benefits arrangements for their employees and senior executives, including: stock option plans, restricted stock plans, deferred share unit plans, stock purchase plans, phantom stock plans, omnibus stock plans, equity-based incentive programs; broad-based profit sharing plans and other bonus and incentive plans; supplementary retirement plans and their related funding instruments; change in control arrangements; non-competition/confidentiality provisions; and severance arrangements.
 

Our lawyers have considerable experience representing clients before Boards of Arbitration and advising clients at all stages of the grievance procedure. We regularly advocate on behalf of our clients on a broad range of issues including:

• Absenteeism
• Benefit Entitlement
• Classification
• Contracting-Out
• Discipline and Discharge
• Human Rights
• Management Rights
• Overtime
• Promotion and Demotion
• Seniority Challenges
• Transfers

Our lawyers advise clients on compliance with Federal and Provincial Human Rights statutes, assist in the development of human rights policies and act as counsel before Human Rights adjudicators and the courts in the event of a complaint.

Consistent with our practice philosophy we stress prevention and encourage our clients to deal proactively with human rights issues rather than respond defensively to particular complaints.

Where a breach is alleged we assist our clients to address the issues thoughtfully, thoroughly and strategically to resolve the particular case and any broader issue that may exist in the workplace. This includes designing and/or implementing effective complaint investigation processes (see also Workplace Investigations).

If a matter proceeds to a hearing we vigorously advocate on behalf of our clients before the appropriate adjudicative body.
 

Our lawyers appear before all levels of the Ontario Courts, Federal Court of Canada and Supreme Court of Canada in Judicial Review and Appellate Proceedings.

We also appear on behalf of clients either seeking injunctive relief where there is an unlawful strike or breach of an employment contract (such as a non-competition or non-solicitation clause), or on behalf of companies defending against this type of allegation.
 

From time to time, the process of collective bargaining does not conclude with a negotiated agreement between management and the union. When this occurs, our lawyers have experience assisting management to prepare for, and participate in, the process of “interest arbitration”. This includes

• Sourcing economic information
• Sourcing and assessing recent collective agreements and interest arbitration decisions within the same or related sector, including agreements recently signed by the trade union with which our client is dealing
• Predicting trade union strategy
• Analyzing the impact of collective agreement language on future plans
• Establishing strategy to achieve desired outcomes
• Representing management before the arbitrator
• Achieving the best agreement available

We strongly believe that the most effective way to assist our clients is to partner with them in training and educating their management teams. We do this in a number of ways including in house training programs, seminars and newsletters.

We customize each and every training program to meet and exceed the needs of our clients, including for example: interactive seminars; self taught training material; workbooks and handouts; situational analysis; and “how to” approaches to workplace situations. We always look for opportunities to enable our clients to take over the training programs directly, so that their own leaders advance their skills and knowledge.

The following are some of the subjects upon which we have provided recent training, although we have presented seminars, workshops and training on virtually every conceivable workplace-related subject:

Employment Law

• employment contracts, including executive contracts
• best practices for hiring and firing
• the end of mandatory retirement
• independent contractor relationships
• wrongful dismissal
• privacy law
• violence and crime in the workplace
• IT related workplace misconduct
• codes of conduct/ethics
• pandemic planning
• workplace romance
• restrictive covenants
• mergers & acquisitions
• workplace investigations

Labour Law

• best practices to remain “union free”
• employer free speech
• investigations and investigations protocols
• the principles of progressive discipline
• harassment
• workplace violence
• how to prepare for arbitration
• dispute resolution protocols
• managing strikes and industrial actions
• return to work policies and procedures

Human Rights

• legal compliance
• diversity awareness
• the duty of accommodation
• investigations
• illness and disability issues
• attendance management
• biometrics

Occupational Health & Safety

• joint health and safety committee rights and obligations
• investigation protocols
• the components of a due diligence defence
• Bill C-45 compliance
• violence and crime in the workplace

Workplace Safety & Insurance

• claims management
• accident investigation
• experience rating
• return to work programs/li>
• handling appeals

In virtually every employment or labour litigation process there are opportunities (and in some cases obligations) to participate in a mediation.  A properly conducted mediation can result in a cost effective resolution designed entirely by the parties.  Our legal team is highly skilled at using the mediation process to further our clients’ interests regardless of the desired outcome.
 

We regularly advise employers regarding health and safety issues and participate in training supervisors and other management staff concerning their obligations under applicable legislation. We work with employers to:

• Create and/or modify health and safety policies
• Conduct workplace health and safety audits
• Respond to injuries in the workplace
• Respond to Ministry of Labour orders including stop work orders
• Implement discipline and other enforcement mechanisms
• Respond effectively to work refusals
• Appeal inspectors’ orders
• Defend prosecutions under health and safety legislation

The members of our firm regularly appear before the Ontario Labour Relations Board and Canada Industrial Relations Board representing the interests of our clients. We pride ourselves on having excellent working relationships with the members of these Boards, which in turn can be of great benefit to our clients.

Our legal team is also frequently consulted by governments and asked to participate in industry-wide initiatives regarding substantive and procedural aspects of proceedings before these Labour Boards.

We have earned a reputation for responding quickly, effectively and strategically to:

• Applications for Certification from trade unions
• Unfair Labour Practice Applications
• Sale of Business/Related Employer Applications
• Unjust Dismissal Applications under Section 240 of Part III of the Canada Labour Code (Division IX)
• Construction Industry matters such as:
• Section 133 Grievance referrals
• Jurisdictional disputes
• Occupational Health & Safety Complaints
• Stop Work Orders
• Employment Standards Complaints
• Employment Standards Orders to Pay

Employers in Ontario must comply with the provincial Pay Equity Act. This includes maintaining pay equity as new jobs are created and/or there are “changed circumstances”. In almost every case, pay equity is an important consideration during collective bargaining and in the event of a merger, acquisition or sale. The failure to maintain pay equity can be costly, both financially and in the public eye.

Our team has experience assisting clients to achieve and maintain pay equity, including representing employers before the Pay Equity Commission.
 

Sherrard Kuzz LLP is an industry leader in the area of privacy law. Members of our firm write and lecture extensively on this new and evolving regulatory regime and regularly consult government regarding the enactment of appropriate legislative initiatives.

Our firm itself is privacy-compliant, with expertise advising and assisting our clients in the following areas:

• Educational training and seminars
• Customized privacy questionnaires and audits
• Compliance strategy and plans
• Compliance implementation
• Privacy practices and protocols
• Avoiding and addressing privacy violations
• Representation at privacy complaint hearings
• Responding to Access To Information Requests
• Ongoing support

We appreciate that proactive, privacy-compliant organizations achieve the following competitive advantages:

• Enhanced public image and branding
• Increased customer and employee confidence and loyalty
• Secured e-commerce transactions
• Growth of E-commerce based revenue and market share
• Ensured customer privacy
• Avoidance of inter-provincial and international trade barriers

We are experienced advising clients under the Personal Information Protection and Electronic Documents Act, Privacy Act and Personal Health Information Protection Act, and regarding the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act.
 

Sherrard Kuzz sets the industry standard. Our assistance is proactive, strategic and multi-faceted.

The first step begins long before there are signs of union activity. This includes assisting clients to develop strategies and implement practical programs to enhance the leadership skills of their front-line managers and supervisors. The objective is to create or strengthen positive employee relations and a motivated workforce. We always look for opportunities to enable our clients to take over the training programs directly, so that their own leaders become more highly skilled and knowledgeable. In our experience, a common by-product of these programs is the maintenance of a union free workplace (see also Employee Relations and Management Training).

The second step is to train management to identify the signs of union activity, and take proactive steps to address the underlying issues.

The third step, should union organizing occur, is to ensure that managers and leaders know exactly what they can and should say and do in response. This includes assisting management to understand its right to free speech and how to exercise that right while remaining in compliance with the law. Every manager and supervisor should have the knowledge, skill and tools to effectively lead the workforce in response to union organizing activity. Failure to have this, and the resulting confidence to make the right decisions, can lead to a vote in favour of union certification.

In our experience, without this kind of support from skilled, experienced legal counsel, some management teams - motivated by insufficient knowledge and fear of making a mistake - retreat in the face of union activity – giving up critical opportunities to lead their workforce. Other management teams, caught off guard by the union presence, take the opposite approach and react rashly, sometimes contrary to the Ontario Labour Relations Act, resulting in an allegation of an unfair labour practice.
 

Many legal issues arise when an employer transfers, closes or sells a business. We have extensive experience advising unionized and non-unionized employers regarding these issues as well as practical strategies to minimize financial impact and business disruption, including:

• Adjustment plans
• Checklists and timelines
• Early termination of collective agreements
• Golden parachute contracts
• Mass termination
• Notice and severance payments
• Pension/Registered Retirement Savings Plan issues
• Receivership/bankruptcy issues
• Termination of employment contracts

The possibility of a strike or lockout is a reality for most employers bound by a collective agreement.

We help our clients plan for this type of work interruption so that should it occur, whether unavoidable or strategic, its impact is consistent with our clients’ business objectives. Where appropriate we also assist our clients manage and resolve the impasse, including litigating before the Labour Relations Board or courts if it is necessary to do so.

Finally, we appreciate that it is in our clients’ long-term interest to maintain productive relationships with their trade union(s) and employees. We therefore make every effort to ensure that when disagreement does occur, resolution is reached with the least possible disruption while achieving our clients’ goals.
 

In recent years the Ministry of Labour has significantly increased its focus on carrying out workplace spot audits under each of the Employment Standards, Workers’ Compensation and Occupational Health and Safety Acts. We help our clients prepare for and participate in spot audits by assisting them to:

Self Audit
• Understand the importance of carrying out self audits
• Design effective self audits
• Respond appropriately to the results of a self audit

Ministry of Labour Audits
• Understand recent Ministry of Labour initiatives
• Determine whether their workplace is a probable target
• Understand what to do when an auditor comes knocking
• Implement best practices to ensure a smooth audit process/li>

More and more employers are recognizing the importance of workplace investigations in discovering problems and preventing their recurrence. Common reasons why an employer might conduct an investigation include:

• Substance abuse
• Discrimination complaints
• Harassment complaints
• Threats against others
• Vandalism and other sabotage
• Violations of work rules
• Safety complaints
• Workplace theft

Each type of issue demands its own method of investigation. However, certain common threads run through every type of investigation situation. The investigator must be knowledgeable about applicable employment laws, uphold the privacy rights of employees and others, conduct a thorough investigation, be objective, and keep his or her mind on the ultimate goal of any investigation (i.e., discovering the underlying reasons for the problem so that management can take corrective action).

At Sherrard Kuzz LLP we regularly assist clients to consider, plan and undertake effective workplace investigations, including:

• Assessing the complaint or issue
• Refining the client’s objective
• Determining whether to involve an expert
• Suggesting an investigator (where appropriate)
• Providing legal and strategic advice from start to finish including best practices
• Implementing recommendations and follow-up

Members of Sherrard Kuzz LLP provide clients with education, assistance, management and representation in all Workplace Safety and Insurance Board and Workplace Safety and Insurance Appeals Tribunal matters and related adjudication arising from:

• Compulsory and voluntary registration
• Compliance audits
• Accident investigation reporting
• Early and safe return to work and re-employment obligations
• Employee compensation claims and labour market re-entry programs
• Rate group classification

Sherrard Kuzz LLP
Employment & Labour Lawyers
155 University Avenue, Suite 1500
Toronto, Ontario, Canada M5H 3B7