Never underestimate the importance of jurisdictional issues in employment relationships

Editor's Note

This article is sponsored by Fasken Ottawa.
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Many employers in the National Capital Region have workers from either Ontario or Quebec or operate in both provinces. Reports show that “...over 9,000 pedestrians and cyclists and some 150,000 vehicles cross the interprovincial bridges every day.” With significant and growing economic activity between Ottawa and Gatineau, the federal government recently asked the National Capital Commission to “refresh existing studies on potential corridors” for a sixth link between the two cities.

No employer or employee in the region should overlook the importance of jurisdictional issues arising from their employment relationships.

Let’s consider the following scenario: you are an employer in Ottawa, and you hire a person living in Gatineau to perform work that will mostly be done remotely. A few months after the employment start date, the employee works 43 hours in a week and requests to receive overtime pay. Are you required to pay the employee overtime pay considering that the overtime threshold in Ontario is 44 hours? The answer will depend on the applicable legal framework. 

Let’s continue with the same scenario: you have to lay off an employee for budgetary reasons and to restructure your company. Following an analysis of your options under the common law and the Ontario Employment Standards Act, 2000, you terminate the employee. Unexpectedly, the latter contests your decision according to the applicable Quebec laws and demands to be reinstated. Should the employee start his or her action under Ontario laws? Again, the answer will depend on the applicable legal framework.

While crossing the river separating Ottawa and Gatineau may seem like a trivial daily activity, it is not. The legal framework defining employment relationships is substantially varied in many respects. To name just a few examples, differences between the Quebec and Ontario legal systems include different rules of procedure that may encourage settling disputes amicably, the right of an employee to claim legal fees or to request reinstatement in his or her employment, and different employment standards. In short, both employer and employee should know where they stand to avoid any conflict on these issues. 

In the current COVID-19 pandemic context, teleworking has become the norm and many employers are expecting to adopt this way of operating on a permanent basis. For an employer, putting in place a comprehensive teleworking policy has thus become unavoidable – rather, it’s become a necessity – to ensure that such an arrangement works smoothly. A teleworking policy should, among other things, meet applicable health and safety obligations, confidentiality requirements, and address working hours and overtime expectations.

However, while employers may adopt comprehensive remote work policies, they will most likely not be sufficient or adequate to define the legal framework that will apply to a remote working relationship. Thus, this new reality has the potential to cause additional headaches for employers who do not address the legal aspects of the employment relationship, both at the time of hiring (whether or not employees will only work remotely) and when granting the right to work remotely to employees who live in a different province. 

In conclusion, when playing on both sides of the river, it is crucial to proactively address relevant jurisdictional issues at the forefront to avoid unnecessary conflicts or misunderstandings on this issue. For more information on appropriate strategies for doing so and policies regarding teleworking, contact us so we can discuss your situation. 

Christine Côté is an associate with the Fasken Ottawa office and is called to the Bars of Quebec and Ontario. She practises in the Labour, Employment & Human Rights group, where she advises private and public sector employers on a wide range of employment and labour law issues. Christine can be reached at ccote@fasken.com.