Archived - Discussion Paper on the Review of Labour Standards in the Canada Labour Code

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II. Supporting Working Families

9. Court Leave

Commission Recommendations:
Employees should be entitled to take unpaid leave while they attend court proceedings as a party, witness, or juror. The employer should be provided with reasonable advance notice of the leave. (R. 7.56)

There is currently no legislation that provides employees under federal jurisdiction with the right to a leave of absence where they are required to serve on a jury or to appear in court as a witness. In contrast, all of the provinces have legislated job protection for employees who are absent from work due to jury duty. Three provinces (New Brunswick, Nova Scotia and Newfoundland and Labrador) also provide employees with the right to leave where they are required to attend court as a witness. An argument can be made that employees should not have to fear the loss of their jobs if they are performing the civic duties of juror or witness, especially when it is considered that employees may be subject to legal sanctions if they do not attend court as required.

However, it seems that no Canadian jurisdiction has adopted legislation that provides a worker with the right to leave in the event that he or she is a party to court proceedings (e.g., as a plaintiff or defendant in a civil action, or as an accused in a criminal trial). This is perhaps because a party to a proceeding is generally furthering a private interest rather than fulfilling civic obligations. Moreover, party involvement in court proceedings may take a considerable amount of time. On the other hand, there may be cases where it would be unfair for employees to risk losing their jobs in order to participate in court proceedings (e.g., where an employee is added as a defendant in a lawsuit against his or her employer).

For discussion:
  • Should employees be provided with the right to unpaid leave where they are required to attend court proceedings as a juror or witness? If so, how much advance notice should be given to the employer? Should there be any restrictions or conditions on the right to leave?
  • Are there any situations where an employer should be required to provide unpaid leave for an employee who is a party to court proceedings (e.g., as an accused person in a criminal trial or a plaintiff or defendant in a civil matter)? If so, should there be a limit as to the length of leave that must be provided?

10. Public Emergency Leave

Commission Recommendation:
Part III should be amended to provide the Governor in Council with the authority to make regulations that allow defined classes of workers to take job-protected, unpaid leave in the event of a public emergency such as a natural disaster or pandemic. (R. 7.57)

Legislation to allow for unpaid leave in the event of a state of emergency is not without precedent in Canada. Since June 2006, employees in Ontario have had the right to unpaid leave in the event of a declared emergency in certain circumstances (e.g., where they are required to provide assistance under an emergency order, or are needed to provide care and support to a family member). An emergency can be declared in the province of Ontario for reasons such as a disease, the forces of nature, an accident, or an intentional act. Moreover, in May 2003, Ontario passed legislation to provide for the right to job-protected, unpaid leave for those absent from work due to the SARS outbreak. Similarly, the Public Health Act (PHA) of Alberta prohibits an employer from terminating a worker’s employment for the sole reason that he or she was conscripted into service by the Government to meet the needs of a public health emergency. The Employment Standards Code of Alberta was amended in June 2007 to allow employees to file a complaint if they are dismissed by their employer in contravention of the PHA.

At the federal level, allowing the Governor in Council to make regulations to provide for public emergency leave would help ensure that the Government can respond quickly to meet the needs of employees, employers and the general public in the event of a public emergency. This is because regulations can be issued or amended at any time and there is no need to go through the legislative process in Parliament. Regulations can therefore be easily adapted in order to respond to a particular type of situation. Some may argue that it makes the most sense to provide the Governor in Council with a broad authority to make regulations concerning public emergency leave, given the wide range of emergency situations that may occur. Allowing for flexibility also ensures that all federal government departments, including Public Safety and Emergency Preparedness Canada, can provide a coordinated response to the emergency. Moreover, where an emergency is localized, it may be important to consult with provincial or territorial government officials before leave provisions are drafted.

The other view is that the right to public emergency leave, and the circumstances under which it may be taken, should be clearly specified in advance in Part III itself. This may provide for greater certainty for employers and employees. For instance, Part III could be amended to provide that employees are entitled to take unpaid, job-protected public emergency leave where:

  • They are required by law to provide assistance or perform some other function during a declared state of emergency or public health emergency;
  • They are under investigation, treatment or quarantine for a contagious disease or other health condition during a public health emergency;
  • Their employer asks them not to attend work in order to prevent the spread of a contagious disease during a public health emergency; and/or
  • They are required to provide care and support to a family member during a public emergency.
For discussion:
Should employees be provided with the right to leave in the event of a public emergency? If so, should the Governor in Council be given a broad authority to issue regulations regarding public emergency leave? Would it be preferable to specify at least some of the conditions for leave within Part III itself? If so, under what circumstances should leave be provided? Should any conditions or restrictions apply to the right to leave?

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Date Modified:
2012-02-15