2010 September - Download PDF

 

Bill 168 - Changes to Prevent Workplace Violence and Harassment in the Workplace

Violence or harassment at work is never acceptable and can have a detrimental affect on your workplace and co-workers. On June 15, 2010, Bill 168 came into effect. This Bill amends Ontario’s Occupational Health and Safety Act so that there is now a requirement on employers to:

  • Prepare workplace policies for both violence and harassment and develop and maintain programs to implement them
  • Develop and implement a program to protect workers from the risks identified
  • Assess the risk of violence when such incidences come to light
  • Include control measures/procedures and a response process in the program that addresses employee reporting, incident and complaint investigation and emergency response for incidents involving violence and
  • Inform and instruct employees on the program and procedures
  • Alert certain workers of the risk of workplace violence from persons with a history of violent behaviour. Employers and supervisors must provide workers who may encounter such persons at work with as much information, including personal information, as needed to pro-tect the workers from physical injury.
  • If aware or ought to be aware that domestic violence may erupt at work to take every reasonable precaution to protect the worker

The amendments also expand workers rights to refuse unsafe work to include situations of violence.

Workplace violence as defined in the Occupational Health and Safety Act as;

  • the use of physical force by a person* against a worker in a work-place that causes or could cause physical injury to the worker
  • an attempt to use physical force against a worker in a workplace that could cause injury to the worker or
  • a statement or behaviour that is reasonable for the worker to interpret as a threat to exercise physical force against the worker in a workplace that could cause physical injury to the worker

* person could mean any person including customers, clients, patients, co-workers, friends, current or former family members and strangers.

If an employee makes a complaint to Ontario’s Ministry of Labour Employment Standards Branch about workplace violence and harassment or failure by the employee’s employer to follow these new requirements, Ministry of Labour health and safety inspectors will be sent to follow up with the employer to see if the employer is implementing and following it’s workplace violence and harassment policies.

More information about Bill 168 can be found at the Ministry of Labour’s Employment Standards branch website at http://www.labour.gov.on.ca/english/es/

 

Pardons

People who have a criminal record in Canada often want to know how they can “erase” their criminal record.

In reality, there is no way to “erase” a criminal record but through the pardons process in Canada, the National Parole Board (NPB) under the Criminal Records Act ( CRA) can issue a pardon which has the affect of taking all information pertaining to the pardoned convictions out of the Canadian Police Information Centre (CPIC) database and it may not be disclosed without permission from the Minister of Public Safety Canada. A pardon does not though guarantee entry or visa issuances to another country and courts and local police services (other than RCMP) do not have to keep records of convictions separate and apart from other criminal records because they are under provincial and municipal law.

It is important to note that according to the Criminal Records Act, even though a person is pardoned of certain sexual offences, that record will be kept separate and apart but the offender’s name will be flagged in the CPIC computer system. That means that a potential employer can see that person’s record regardless of the date of conviction or date of pardon was granted or issued if that person wants to work with children or other groups of vulnerable person such as the elderly and the disabled.

Who Can Apply for a Pardon?

You may apply for a pardon if you were convicted of an offence under a federal act or regulation of Canada. The Criminal Code of Canada is a Federal act so a person convicted of a criminal offence can apply for pardon. A person may apply even if he or she is not a Canadian citizen or a resident of Canada.

When Can You Apply for a Pardon?

You can apply for a pardon if you have completed your sentence and if a certain period of time has passed since completing the sentence – how much time has to pass depends on what criminal offence you were convicted of. Your sentence is completed once you have served all of the time ordered, when you have satisfied your probation order and when you have paid all the fines, surcharges, costs and restitution and compensation orders in full. For example, you were convicted of an indictable offence on October 1, 2000. You were ordered to serve jail time for 4 months and pay restitution for damages you caused to the victim of $100 a month for 24 months after you finished serving your jail time. You therefore finished serving your sentence on February 1, 2003 because your jail time ended on February 1, 2001 plus another 2 years to finish paying restitution.

After the sentence is completed, you have to wait 3 more years before you can apply for a pardon if the offence you were convicted of was a summary conviction offence under the Criminal Code and wait 5 more years for an indictable offence. Summary conviction offences are the less serious offences while indictable offences are the more serious ones.

For example, if you were sentenced by the court on February 1, 2010 to serve 4 months of jail time and 3 years of probation for an indictable offence, you would have finished your sentence on June 1, 2013 and be eligible to apply for a pardon 5 years from this date which is June 1, 2018.

You have to wait five years for any conviction under the Transfer of Offenders Act and five years for convictions under the National Defence Act if you were fined more than $2,000.00, imprisoned more than 6 months or dismissed from the service and three years for all other penalties.

Absolute and Conditional Discharges

If the court gave you an absolute or conditional discharge, you do not need to apply for a pardon. Discharges ordered by the court after July 24, 1992 will automatically be removed from the CPIC computer system one year, in the case of absolute discharges and three years if conditional discharge after the court decision. For discharges given before July 24, 1992 to be removed from the record, you must contact Pardon and Purge Services, Information and Identification Services, RCMP, P.O. Box 8885, Ottawa, Ontario, K1G 3M8.

When is a Pardon issued?

The National Parole Board will issue a pardon if it is decided that you have completed your sentence and been a law-abiding citizen by not having any more run-ins with the law. If your pardon application is denied because it has been decided that you have not been of good conduct, you can reapply after a year.

Can a Pardon be revoked or cease to have effect?

Yes, the NPB can revoke a pardon if you are later convicted of a summary offence under a federal act or regulation of Canada, or if the NPB finds you are not longer a person of good conduct or the NPB later finds out that false or deceptive information was given or relevant information was concealed at the time of application. A pardon can also cease to be of effect or cancelled, if you are subsequently convicted of an indictable offence under federal act or regulation of Canada or of an offence punishable either by indictment or summary conviction or if the NPB has new information that you were not eligible for a pardon at the time it was granted.

Pardons for Summary Convictions

If the NPB confirms that the necessary 3 year waiting period has passed after your sentence has been completed and verifies through the RCMP that you have not been convicted of any other offences since that last conviction, a pardon will be issued. This is a non-discretionary process. However, with indictable offences, there is an actual pardon evaluation process. In addition to verifying that the sentence has been completed
and that there have been no new criminal convictions, the Board also investigates your behaviour since the sentence was completed to confirm good conduct. The Board will then after this evaluation decide whether or not to grant or deny the pardon.

Application Process

Applying for a pardon is not a complicated process. The application form and the Pardons application guide can be obtained at police offices and courts as well as online at www.npb-cnlc.gc.ca/pardons. The instruction guide tells you step by step what documents you need to apply for before you can actually submit that application form. Most applicants need to apply for and get a RCMP Criminal Record Check and a local
police record before applying for a pardon. Some applicants, depending on the sentence may also need to obtain proof of conviction from the court where they were tried. How to get all of these documents is outlined in the application guide.

A new requirement now is you also have to submit proof of what your immigration status is in Canada. If you have no immigration status here, you have to get confirmation of this from Canada Immigration. This can sometimes be difficult to do. If you have trouble getting this information, contact a legal clinic or immigration lawyer for help.

After you have all of the necessary documents and the form is completed, you can send everything to the NPB with a $50.00 application fee. In the past, the waiting time to get a pardon was very long, between 18-24 months. However, efforts have been made to shorten the processing times. Getting a pardon for a summary offence conviction is faster than for other more serious offences.

Why do I need a pardon?

It is never a good thing to have a criminal conviction attached to your name so if you are eligible to apply for a pardon, you should apply. For example, having a criminal record could affect your ability to get certain jobs. Also, if you do not have legal permanent immigration status in Canada, having a criminal conviction could be a hinderance to you applying to legalize your status because you could be criminally inadmissible to Canada.

You have any further questions about pardons, you should contact a legal clinic or call the NPB helpline directly at 1-800-874-2652.

 

Specialty Clinic—Toronto Workers’ Health and Safety Legal Clinic

There are about 79 Legal Clinics throughout Ontario. While most of these clinics are general clinics, in that they serve the neighbourhood area in which they are located, there are a few “specialty” clinics that only focus on a certain area law or provide legal services to communities which speak a certain language. Our Clinic is an example of a specialty
clinic because we serve people from the Chinese and Southeast Asian (Vietnamese, Cambodian and Laos) communities who cannot access other legal services because of an inability to speak English.

The Toronto Worker’s Health and Safety Legal Clinic is another example of a specialty Clinic because it focuses on workers who face health or safety problems at work. This Clinic assists non-unionized workers with workplace related issue, promotes health and safety in the workplace and assists those who have been penalized for raising health and safety concerns. This Clinic also provides summary legal advice and representation regarding Workers Safety and Insurance Board (WSIB), employment insurance (EI), Canada Pension Plan disability benefits (CPP), human rights and wrongful dismissal. While the summary legal advice is provided in English, if the Clinic decides to represent you with your legal matter, it will arrange for an interpreter. The Clinic’s number is 416-971-8832. Their website is www.workers-safety.ca

 

The Lawyer Referral Service is now Free!

The Lawyer Referral Service (LRS) is a service operated by the Law Society of Upper Canada that provides a caller with the name of a lawyer who will provide a free consultation of up to 30 minutes. Previously, there was a six dollar fee which appeared on your telephone bill.

When you call the LRS, a client service representative will answer your call and ask you where you want the lawyer to be located, what you want the lawyer to do for you and whether you will be applying for assistance from Legal Aid (not all lawyers take Legal Aid cases). Be sure to tell the client service representative if you have any special needs, such as language or accessibility requirements.

You will be given a referral number and the lawyer’s phone number. It is your responsibility to phone the lawyer’s office and leave a number where you can be reached. Someone will contact you within three business days to arrange for your consultation.

The purpose of the consultation is to help you determine your rights and options. Do not expect the lawyer to do any free legal work during this time.

You may not use the LRS to get a second opinion on the same issue from a different lawyer.

The LRS phone number is 1-800-268-8326 or 416-947-3330 (within the GTA). The LRS is available from 9:00 a.m. to 5:00 p.m., Monday to Friday.

 

Higher Monetary Limits in Small Claims Court

As of January 1, 2010, the Small Claims Court raised its monetary limit from $10,000 to $25,000.

You can still use the Small Claims Court if the amount of your claim is more than $25,000. However, you will have to give up the right to recover any amount of money over $25,000, as well as any future right to get this money in any other court action.

You cannot divide the amount of money you are claiming into separate cases. For example, if you want to claim $40,000, you cannot have two cases where you ask for $25,000 in one action and $15,000 in the second action.