10,000 leaves of absence - cch · ¶10,000 leaves of absence paragraph paragraph introduction........

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Chapter 10

¶10,000 LEAVES OF ABSENCE

Paragraph ParagraphIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . 10,005 Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,405Maternity/Parental leave . . . . . . . . . . 10,010 New Brunswick . . . . . . . . . . . . . . . . . . 10,425

Introduction . . . . . . . . . . . . . . . . . . . . . . 10,015 Newfoundland and Labrador . . 10,430Maternity and Parental Leave Nova Scotia . . . . . . . . . . . . . . . . . . . . . . 10,435

Chart . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,020 Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,440Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,025 Prince Edward Island . . . . . . . . . . . 10,445Alberta . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,030 Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,450British Columbia . . . . . . . . . . . . . . . . . 10,035 Saskatchewan . . . . . . . . . . . . . . . . . . . 10,455Manitoba . . . . . . . . . . . . . . . . . . . . . . . . . 10,040

Yukon Territory . . . . . . . . . . . . . . . . . . 10,465New Brunswick . . . . . . . . . . . . . . . . . . 10,045

Compassionate Care Leave . . . . . . 10,466Newfoundland and Labrador . . 10,050

Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,467Nova Scotia . . . . . . . . . . . . . . . . . . . . . . 10,055

Manitoba . . . . . . . . . . . . . . . . . . . . . . . . . 10,470Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,060

New Brunswick . . . . . . . . . . . . . . . . . . 10,471Prince Edward Island . . . . . . . . . . . 10,065

Newfoundland and Labrador . . 10,472Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,070Nova Scotia . . . . . . . . . . . . . . . . . . . . . . 10,473Saskatchewan . . . . . . . . . . . . . . . . . . . 10,075Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,475N.W.T./Nunavut . . . . . . . . . . . . . . . . . . 10,080Prince Edward Island . . . . . . . . . . . 10,476Yukon Territory . . . . . . . . . . . . . . . . . . 10,085Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,477Paternity Leave . . . . . . . . . . . . . . . . . . . . . 10,100Saskatchewan . . . . . . . . . . . . . . . . . . . 10,478Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,150Nunavut . . . . . . . . . . . . . . . . . . . . . . . . . . 10,480Adoption Leave . . . . . . . . . . . . . . . . . . . . 10,200Yukon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,481Newfoundland and Labrador . . 10,230

Court Leave . . . . . . . . . . . . . . . . . . . . . . . . 10,490Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,250Family Responsibility/EmergencySaskatchewan . . . . . . . . . . . . . . . . . . . 10,255

Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,500Bereavement Leave . . . . . . . . . . . . . . . 10,300British Columbia . . . . . . . . . . . . . . . . . 10,505Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,305New Brunswick . . . . . . . . . . . . . . . . . . 10,506British Columbia . . . . . . . . . . . . . . . . . 10,315Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,508New Brunswick . . . . . . . . . . . . . . . . . . 10,325Prince Edward Island . . . . . . . . . . . 10,509Newfoundland and Labrador . . 10,330Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,510Nova Scotia . . . . . . . . . . . . . . . . . . . . . . 10,335

Education Leave . . . . . . . . . . . . . . . . . . . 10,600Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,340Voting at Elections . . . . . . . . . . . . . . . . . 10,700Prince Edward Island . . . . . . . . . . . 10,345

Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,705Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,350Provincial . . . . . . . . . . . . . . . . . . . . . . . . . 10,710Saskatchewan . . . . . . . . . . . . . . . . . . . 10,355Municipal . . . . . . . . . . . . . . . . . . . . . . . . . 10,715Yukon Territory . . . . . . . . . . . . . . . . . . 10,360

Sick Leave . . . . . . . . . . . . . . . . . . . . . . . . . . 10,400 Jury Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,800

259 ¶10,000


260 Canadian Master Labour Guide

¶10,005 IntroductionWhile paid vacations were well developed by the 1960s, leaves of

absence are a relatively new phenomenon and are a response to thechanging and competing interests of our society. Maternity and parentalleave recognize the growing number of women in the work force, are anattempt to balance the competing interests of child bearing and rearingand work force involvement, and are partially compensated through gov-ernment funding. Other forms of leave, such as education leave, recognizethe need for and the benefits of a skilled and continually upgradedworkforce that can respond to changes in workplace technology. At pre-sent most education leave provisions are found in collective agreementsand are compensated for by the employer.

This section will discuss leaves of absence for reasons such as mater-nity, parental, adoption, bereavement, sickness, family responsibility, com-passionate care, education, special occasions, voting, and jury duty.

Note: On April 1, 1999, the new territory of Nunavut came into being.The Federal legislation creating the new territory has declared that North-west Territories legislation will apply to Nunavut until the new territorypasses its own legislation. For the purposes of this commentary, Nunavutand Northwest Territories law should be presumed to be the same, exceptwhere otherwise stated.

¶10,010 Maternity/Parental Leave¶10,015 Introduction

The federal government and all the jurisdictions provide for maternityleave in their labour legislation. The provisions generally state that apregnant employee who has worked for the same employer for a specifiedperiod of consecutive months is entitled to an unpaid maternity leave of 17or 18 weeks. While on leave the individual continues to be an employeeand at the end of her leave the employer is required to reinstate her to theposition she held prior to the leave or to an alternative position of acomparable nature. During the leave, employees may be eligible forEmployment Insurance benefits (see ¶28,425).

The federal government and all the jurisdictions provide for parentalor child care benefits in their labour legislation. The provisions typicallystate that a natural or adoptive parent who has worked for the sameemployer for a specified period of consecutive months is entitled to anunpaid parental leave of between 35 and 52 weeks, depending on thejurisdiction. Parental leave may be taken by both parents in some jurisdic-tions and must be shared between the parents in other jurisdictions. While

¶10,015


Leaves of Absence 261

on leave, the individual continues to be an employee and at the end of theleave must be reinstated under similar provisions as set out under mater-nity leave below. As with maternity leave, employees on parental leavemay be eligible for Employment Insurance benefits.

The following chart provides a convenient overview of the provisionsin each jurisdiction.

¶10,020 Maternity/Parental Leave Chart

Qualif ying Length Required Senior ity/Jur isdiction Period of Leave Extension Notice Reinstatement Benef its

Federal 6 months 17 weeks not 4 weeks same/similar employment(pregnancy) specif ied position with deemed

same wages/ continuous;

(parental) 6 months 37 weeks not 4 weeks benef its employer tospecif ied continue making

payments tobenef it plans

Alberta 52 weeks 15 weeks not 6 weeks same/compara- same wages/(pregnancy) specif ied ble position benef its that

with same accrued towages date leave

commenced

(parental) 37 weeks not 6 weeksspecif ied

Br itish not specif ied 17 weeks 6 weeks 4 weeks same/compara- servicesColumbia ble position deemed

(pregnancy) with all continuous;increments/ employer tobenef its continue makingas if leave payments tonot taken benef it plans

(parental) not specif ied 37 weeks; 5 weeks 4 weeks35 weeks ifpregnancyleave istaken

Manitoba 7 months 17 weeks not 4 weeks same/ services(pregnancy) specif ied comparable deemed

position continuouswages/benef itsas beforeleave began

(parental) 7 months 37 weeks not 4 weeksspecif ied

¶10,020




New not specif ied 17 weeks not 4 months same/ no loss ofBrunswick specif ied notice of equivalent senior it y/

(pregnancy) intent to position benef its/take leave; wages2 weeks accrued tonotice of date leavecommencement commencedof leave

(child care) not specif ied 37 weeks not specif ied 4 weeks(natural child)4 months(adoptive child)

Newfoundland 20 weeks 17 weeks not 2 weeks wages, duties, employmentand Labrador specif ied benef its, and deemed

(pregnancy) position not continuous;less benef icial benef itsthan before do not accrueleave unless agreed

to

(parental) 20 weeks 35 weeks not specif ied 2 weeks

Nova Scotia 1 year 17 weeks not 4 weeks same/compara- no loss of(pregnancy) specif ied ble position; senior it y/

same wages, benef itsbenef its accrued to

date leavecommenced;

(parental) 1 year 52 weeks; not 4 weeks not employee has35 weeks if specif ied specif ied option topregnancy maintainleave is benef its attaken own expense

Ontar io 13 weeks 17 weeks 6 weeks 2 weeks same/compara- per iod of leave(pregnancy) pr ior to ble work; included in

estimated same wages calculation ofdelivery date as at date length of

leave employment/commenced senior it y;

(parental) 13 weeks 37 weeks; not 2 weeks employer to35 weeks if specif ied continue makingpregnancy payments toleave is benef it planstaken

¶10,020




Pr ince 20 weeks 17 weeks not 4 weeks same/compara- no loss ofEdward specif ied ble work; senior it y/Island same wages/ benef its

(pregnancy) benef its as if accruedleave not to date leavetaken taken/employer

not obligedto pay pensionbenef its dur ingleave

(parental) 20 weeks 35 weeks not 4 weeksspecif ied

Quebec none 18 weeks not 3 weeks same position same r ights and(pregnancy) specif ied benef its as if no

leave taken

(parental) none 52 weeks not 3 weeks same positionspecif ied

Saskatchewan 20 weeks 18 weeks 6 weeks 4 weeks same/compara- no loss of(pregnancy) in the ble position; senior it y and

immediately not less than pension benef itspreceding same wages/52 week benef itsper iod

(parental) 20 weeks 37 weeks; not 4 weeksin the 34 weeks if specif iedimmediately pregnancypreceding leave is52 week takenper iod

N.W.T./ 12 months 17 weeks 6 weeks 4 weeks same/compara- no loss ofNunavut ble position; senior it y

(pregnancy) with same/ accrued towages/benef its date leave

commenced;wage/benef itincrements asif leavenot taken

(parental) 12 months 37 weeks not 4 weeksspecif ied

Yukon 12 months 17 weeks not 4 weeks same/compara- employment(pregnancy) specif ied ble position; deemed

same wages/ continuousbenef its as ifleave nottaken

(parental) 12 months 37 weeks not specif ied 4 weeks

(CCH ¶5951; 5980)

¶10,020



¶10,025 Federal

Maternity-related Reassignment and Leave

At any time from the beginning of the pregnancy to the end of the24th week following the birth of the child, a pregnant or nursing employeemay request that her employer modify her current job functions or reas-sign her to another job, if because of the pregnancy or nursing, continuingany of her current job functions may pose health risk to her, the foetus orthe child. Such a request must be accompanied by a certificate of aqualified medical practitioner, of the employees own choosing, indicatingthe expected duration of the potential risks and the activities or condi-tions to avoid in order to eliminate the risk (s. 204, ¶9846).

An employer must examine the request in consultation with theemployee and where reasonably practicable, modify the employee’s jobfunctions or reassign her. The employee is entitled to remain in hercurrent job position while she waits for the medical certificate and whilethe request is being examined. However, if the risk posed by continuingany of her job functions so requires, she is entitled to and must be granteda leave of absence with pay at her regular wage rate until the employereither modifies the job functions, reassigns her or informs her in writingthat it is not reasonably practicable to modify her job functions or reassignher (ss. 132, ¶9769 and 205, ¶9847).

Where an employee’s job functions are modified or she is reassigned,the employee is deemed to continue to hold the job she had at the timeshe made the request for modification or reassignment and she mustcontinue to receive the wages and benefits that are attached to that job(s. 205, ¶9847).

Where the employer concludes that modification of job functions orreassignment is not reasonably practicable, the employer must so informthe employee in writing. An employee who is so informed, is entitled toand must be granted, a leave of absence for the duration of the risk as setout in the medical certificate. The onus is on the employer to prove that amodification of the job functions or reassignment that would avoid theactivities or conditions set out in the medical certificate is not reasonablypracticable (s. 205, ¶9847).

At any time from the beginning of the pregnancy to the end of the24th week following the birth of the child, a pregnant or nursing employeeis entitled to and must be granted, leave of absence if such a request isaccompanied by a certificate of a qualified medical practitioner, of theemployees own choosing, indicating (a) that she is unable to work byreason of the pregnancy or nursing and (b) the length of that inability(s. 205.1, ¶9848).

¶10,025



An employee whose job functions have been modified, who has beenreassigned or who is on leave of absence must give her employer at leasttwo weeks notice in writing of any change in the duration of the risk as setout on the medical certificate unless there is a valid reason why thatnotice cannot be given, and the notice must be accompanied by a newmedical certificate (s. 205.2, ¶9849).

Maternity Leave

Every employee who has completed six consecutive months of contin-uous employment with an employer is entitled to, and must be granted, aleave of absence for pregnancy upon presentation of a medical certificate(s. 206, ¶9850) and a written application submitted at least four weeksbefore such absence is to commence (s. 207, ¶9852). The period of mater-nity leave shall consist of a period not exceeding 17 weeks. Maternity leaveshall begin no earlier than 11 weeks before the anticipated date of deliveryset out in the medical certificate and shall terminate no later than 17weeks following the actual date of confinement.

The Code also provides that where an employee is unable to performan essential function of her job and no appropriate alternative job isavailable, the employer may require the pregnant employee to take a leaveof absence only for such time as she is unable to perform that essentialfunction. It is up to the employer to prove that the employee is unable toperform an essential job function (s. 208, ¶9853). However, theemployee’s right to request and be given a job reassignment where reason-ably practicable, takes precedence over the employer’s right to require theemployee to take a leave of absence (s. 208.1, ¶9854).

During the period of maternity leave, if the employee requests inwriting, the employer shall in writing inform the employee of everyemployment promotion or training opportunity that arises during theleave of absence for which the employee is qualified (s. 209, ¶9855).

At the expiration of the leave the employee shall be reinstated to theposition held at the commencement of the leave or where this is notpossible to a comparable position with the same wages and benefits and inthe same location (s. 209.1, ¶9856). The pension, health, disability, andseniority benefits of an employee who takes maternity leave shall accumu-late during the entire period of the leave and to that end an employer isrequired to continue the payment of contributions toward employee ben-efit schemes while the employee is on maternity leave. If the employeefails to pay any employee contributions required by the scheme, theemployer’s obligation ceases (s. 209.2, ¶9857). No matter what the provi-sions of any income replacement plan or any insurance plan in force at theworkplace, an employee who takes a pregnancy-related leave of absence,is entitled to benefits under the plan on the same terms as any employee

¶10,025



who is absent from work for health-related reasons and entitled to benefits(s. 209.21, ¶9858).

No employer shall dismiss, suspend, lay off, demote, or discipline anemployee because she has applied for maternity leave and no employershall take into account the intention to take maternity leave when makingany decision to promote or train the employee (s. 209.3, ¶9860). Regula-tions may be issued specifying (a) the absences from employment deemednot to have interrupted continuous service; (b) what does or does notconstitute an essential function of a job; and (c) what does not constitutea valid reason for not reinstating an employee to the position held at thecommencement of the leave (s. 209.4, ¶9861).

For the purpose of determining whether an employee has completedsix consecutive months of continuous employment, if any federal work,undertaking or business is transferred from one employer to another, anemployee’s employment is considered to be continuous (s. 209.5, ¶9862).

Parental Leave

The Canada Labour Code provides that every employee who hascompleted six months of continuous service with an employer is entitledto a leave of absence up to a maximum of 37 weeks in the year followingeither (a) the day the child is born, or (b) the day the child comes into theemployee’s actual care and custody. Either one parent may take all of theparental leave or both parents may share the parental leave. In eithercase, the total parental leave cannot exceed 37 weeks. The total aggregateamount of maternity and parental leave that may be taken by one or twoemployees in relation to the same birth or adoption is 52 weeks (s. 206.2,¶9851a).

Parental leave may only be taken during the 52-week period begin-ning (1) with respect to a newborn child, at the option of the employee, onthe day on which the child was born or came into the care of the employeeand (2) with respect to an adopted child, on the day the child came intothe care of the employee (s. 206.1, ¶9851).

The required notice of intention to take parental leave, the require-ment regarding reinstatement and continuation of accrual of benefits, andthe prohibition against dismissal because of the leave are the same as isset out under ‘‘Maternity Leave’’ above.

In Canadian Airline Flight Attendants’ Association v. PacificWestern Airlines Ltd. flight attendants required to take maternity leavepursuant to the collective agreement, as opposed to the maternity leavebenefits provided by the Canada Labour Code, appealed a decisionholding that they were entitled to the most favourable benefits but notthose preferred. The Court dismissed the appeal and said that the Code

¶10,025



does not limit the employer’s right to enforce maternity leave but ratherensures that benefits provided are at least as favourable as those providedby the Code. The employee is not entitled to work until the date ofconfinement as the Code does not provide entitlement to continueworking but to a leave of absence. The right of an employee to continueworking is limited by her ability to perform and if, because of her condi-tion, she is unable to perform her job, maternity leave may be enforcedwithout being in violation of the Code.

For the purpose of determining whether an employee has completedsix consecutive months of continuous employment, if any federal work,undertaking or business is transferred from one employer to another, anemployee’s employment is considered to be continuous (s. 209.5, ¶9862).

(CCH ¶5991; 5992)

¶10,030 Alberta

Maternity Leave

The Employment Standards Code states that a pregnant employeewho has worked for an employer for at least 52 weeks is entitled tomaternity leave without pay (s. 45, ¶27,945). It is important to note that ifa business is sold, leased, transferred or merged, or continues to operateunder a receiver or receiver-manager, the employment of the employees ofthe business is considered to be continuous. As such, entitlement tomaternity leave is based on the length of time an employee has worked forthe business, not for the current owner (s. 5, ¶27,905).

A pregnant employee is entitled to maternity leave consisting of 15weeks commencing at any time during the 12 weeks immediately pre-ceding the estimated date of delivery (s. 46(1), ¶27,946). The maternityleave period is to include at least six weeks immediately following theactual date of delivery, unless the employer and employee agree otherwiseupon the provision of a medical certificate by the employee (s. 46(2),¶27,946). Date of delivery is defined as the date the child is born or thepregnancy terminates (s. 1(g), ¶27,901).

The employer must be given at least six weeks’ written notice of theday the employee plans to take her maternity leave. If the employer sorequests she must also provide a medical certificate certifying that she ispregnant and stating the estimated date of delivery (s. 47(1), ¶27,947). Apregnant employee is entitled to start maternity leave on the date speci-fied in the notice given to the employer (s. 47(2), ¶27,947).

If an employee entitled to maternity leave fails to give the requirednotice she is still entitled to take the leave, but within two weeks after sheceases to work she must provide a medical certificate that indicates she

¶10,030



cannot work because of the medical condition from her pregnancy andgive the estimated or actual date of delivery (s. 48, ¶27,948). During the12 weeks immediately before the estimated date of delivery, if pregnancyinterferes with the performance of an employee’s work, the employer mayrequire the employee to begin maternity leave by way of a written notice(s. 49, ¶27,949).

An employee who wishes to resume work after maternity or parentalleave must give the employer at least four weeks’ written notice of the dayon which the employee intends to resume work and, in any event, not laterthan 4 weeks before the end of the leave period or 4 weeks before the datespecified as the end of the leave period, whichever is earlier (s. 53(1),¶27,953).

If the employee does not wish to return to work upon the expiry ofthe leave, four weeks’ written notice to this effect must also be provided(s. 53(8), ¶27,953). Once four weeks have passed from the receipt ofnotice of intention to return, the employer must reinstate the employee inthe position occupied when the leave commenced or provide the employeewith alternative work of a comparable nature. Upon reinstatement, theemployee must receive not less than the earnings and benefits that hadaccrued to that employee when the leave started (s. 53(7), ¶27,953). If anemployee fails to provide 4 weeks’ written notice of the intention toreturn, or if the employee fails to return to work on the date specified inthe notice, the employee is not entitled to resume work unless the failureto return to work resulted from unforeseeable or unpreventable circum-stances (s. 53(6), ¶27,953).

If the employer’s business, undertaking or activity has been sus-pended or discontinued in whole or in part during the leave, and theemployer has not resumed operations at the time when the leave ends, theemployer must, if the operation is subsequently resumed within 12 monthsfollowing the end of the leave, reinstate the employee in the positionoccupied at the time the leave started, at not less than the earnings andother benefits that had accrued to the employee, or provide the employeewith alternative work in accordance with an established seniority systemor practice of the employer in force at the time the leave started, with noloss of seniority or other benefits accrued to the employee (s. 53.1,¶27,953a).

Employers may not terminate the employment of employees whohave started their maternity leave or who are entitled to or have startedparental leave. Nor may an employer lay such employees off (s. 52(1),¶27,952). This prohibition does not apply, however, if an employer sus-pends or discontinues, in whole or in part, the business, undertaking orother activity in which the employee is employed. Where such a suspen-sion or discontinuation has occurred, the employer continues to be

¶10,030



obliged to reinstate the employee or provide the employee with alternativework.

Parental Leave

The Employment Standards Code provides that where an employeewho has completed at least 52 weeks continuous service with an employeris a birth parent or adoptive parent of a child, the employee is entitled toan unpaid leave of absence up to a maximum of 37 consecutive weeks(s. 50(1), ¶27,950).

It is important to note that if a business is sold, leased, transferred ormerged, or continues to operate under a receiver or receiver-manager, theemployment of the employees of the business is considered to be contin-uous, pursuant to the Employment Standards Code. As such, entitlementto adoption leave is based on the length of time an employee has workedfor the business, not for the current owner (s. 5, ¶27,905).

A birth mother who takes parental leave must do so immediatelyfollowing the last day of maternity leave. A birth father or adoptive parentmust commence parental leave within 52 weeks of the child’s birth or ofthe placement of the child, respectively (s. 50(1), ¶27,950). Parental leavemay be taken by one parent of the child or shared between two parents(s. 50(2), ¶27,950). However, if the employees are parents of the samechild and have the same employer, the employer is not obligated to grantparental leave to more than one employee at a time (s. 50(3), ¶27,950).Employees who intend to share parental leave must notify their employersof this intention (s. 51(5), ¶27,951).

An employee intending to take parental leave must submit a writtennotice of leave to the employer at least six weeks prior to the date theemployee will start parental leave unless the medical condition of thebirth mother or child makes it impossible to comply or if the date of thechild’s placement was not foreseeable (s. 51(1), ¶27,951). When anemployee is unable to give written notice of parental leave for one of thesereasons, the employee must, as soon as possible, give written notice to theemployer of the date the employee will start or has started parental leave(s. 51(2), ¶27,951). An employee is entitled to start parental leave on thedate specified in the notice given to the employer (s. 51(3), ¶27,951). Apregnant employee who gives written notice of maternity leave, above,need not give further notice of parental leave unless her notice specificallyprovides that it is not notice of parental leave (s. 51(4), ¶27,951).

The requirements regarding reinstatement and continuation ofaccrued benefits and the prohibition against dismissal because of leaveare the same as those set out above under maternity leave.

(CCH ¶6002)

¶10,030



¶10,035 British Columbia

Maternity Leave

The Employment Standards Act provides that an employee, uponher written request for maternity leave, is entitled to a leave of absencewithout pay for a period of seventeen consecutive weeks or a shorterperiod the employee requests, to commence no earlier than eleven weeksbefore the expected date of birth and no later than the actual birth date.Maternity leave ends no earlier than six weeks after the actual birth dateunless the employee requests a shorter period, and no later than 17 weeksafter the actual birth date. If an employee requests leave after the birth ofa child or the termination of a pregnancy, she is entitled to up to six weeksof unpaid leave beginning on the date of the birth or of the termination ofthe pregnancy (s. 50, ¶39,330).

The employee must, if so requested, provide her employer with amedical certificate specifying the probable date of the birth of the child,the actual birth date, or the date of the termination of pregnancy,depending on the case. She must also submit a written application at leastfour weeks before the date on which the leave is to commence (s. 50,¶39,330). If the employee desires a shortened leave, this request must begiven to the employer at least one week before the employee returns towork and there must also be, if the employer requests it, a medical certifi-cate stating that the employee is able to resume work (s. 50(5), ¶39,330).

The employee is entitled to a six-week extension of her leave if she isunable to return to work because of reasons related to the birth or termi-nation of pregnancy as verified in a medical certificate (s. 50(3),¶39,330).

If an employee takes maternity leave, the employer may not terminatethe employee’s employment during the leave, or change a condition ofemployment without the employee’s written consent. As soon as the leaveends, the employer must place the employee in the position held beforethe leave commenced, or in a comparable position. If the employer’s oper-ations are suspended or discontinued when the leave ends, the employermust, subject to the seniority provisions in a collective agreement, placethe employee in her previous position or a comparable position as soon asoperations are resumed (s. 54, ¶39,334).

The services of an employee on maternity leave are deemed to becontinuous for calculating vacation entitlements, notice of termination,and employee benefits, unless the employee has, without the employer’sconsent, taken a longer leave than is provided under the Act (s. 56,¶39,336). Where the employer bears the total cost of a benefit plan, or theemployee chooses to continue to pay her share of the cost of a plan, the

¶10,035



employer must continue to contribute to benefit plans while an employeeis on leave. When she resumes work after the maternity leave expires, theemployee is entitled to all the wage increments and benefits to which shewould have been entitled had the leave not been taken (s. 56, ¶39,336).

The Employment Standards Regulation provides that the Act doesnot apply to employees who are practising members of certain profes-sions, such as architects, lawyers and accountants (Reg. s. 31, ¶39,531).Specifically exempted from the leave of absence provisions of the Act arestudent nurses, and auxiliary or volunteer firefighters (Reg. s. 33,¶39,533). Nor does the Act apply to students employed in work studyprograms, sitters, participants in government incentive programs, news-paper carriers, and persons working on job creation programs under theEmployment Insurance Act (Reg. s. 32, ¶39,532).

Parental Leave

The Employment Standards Act provides that every employee whobecomes a natural mother or father of a child or adopts a child is entitledto unpaid parental leave of up to 35 or 37 consecutive weeks. For birthmothers who also take maternity leave, the maximum entitlement toparental leave is 35 weeks, beginning immediately after the end of mater-nity leave unless the employer and employee agree otherwise. For birthmothers who do not take maternity leave, birth fathers, and for anadopting parent, maximum parental leave is 37 weeks. For these birthmothers and for birth fathers the leave begins after the child’s birth andwithin 52 weeks after the birth. For adopting parents the leave beginswithin 52 weeks after the child is placed with the parent. If the child has aphysical, psychological or emotional condition requiring an additionalperiod of parental leave, the employee is entitled to up to five additionalweeks of unpaid leave, beginning immediately after the end of the originalleave (s.51, ¶39,331).

If the child has a physical, psychological or emotional conditionrequiring an additional period of parental care, the employee is entitled toup to 5 additional consecutive weeks of unpaid leave, beginning immedi-ately after the end of parental leave (s. 51(2), ¶39,331).

An employee’s combined maternity and parental leave is limited to 52weeks, plus any extensions to which she is entitled under the Act, such asthe 5-week leave entitlement discussed above (ss. 51(1) and 51(4),¶39,331).

An employee who intends to take parental leave must request it inwriting, at least four weeks prior to the proposed commencement of theleave. As well, if the employer requests it, the employee must provide the

¶10,035



employer with a medical certificate or other evidence of the employee’sentitlement to leave (s. 51, ¶39,331).

If an employee takes parental leave, the employer may not terminatethe employee’s employment during the leave, or change a condition ofemployment without the employee’s written consent. As soon as the leaveends, the employer must place the employee in the position held beforethe leave commenced, or in a comparable position. If the employer’s oper-ations are suspended or discontinued when the leave ends, the employermust, subject to the seniority provisions in a collective agreement, placethe employee in his or her previous position or a comparable position assoon as operations are resumed (s. 54, ¶39,334).

The provisions relating to seniority, benefits, and reinstatement onthe expiration of the leave are the same as those covering pregnancyleave.

The exceptions to these provisions are the same as those for mater-nity leave, detailed above.

(CCH ¶6011; 6012)

¶10,040 Manitoba

Maternity Leave

An employee who has been employed by the same employer for atleast seven consecutive months (s. 53, ¶40,653) is eligible of a maternityleave up to 17 weeks (s. 54, ¶40,654). If the date of delivery of the childoccurs after the date estimated in the medical certificate obtained by themother, the mother is additionally entitled to a period of time equal to thetime between the estimated date and the date of delivery. Maternity leavemust begin no earlier than 17 weeks before the estimated date of deliveryand must end no later than 17 weeks after the actual date of delivery(s. 54(2), ¶40,654).

Employees who are eligible for maternity leave must, as soon as it ispracticable, provide the employer with a medical certificate giving theestimated date of delivery. They must also give the employer at least fourweeks’ written notice of the date they will start their maternity leave(s. 54(3), ¶40,654). An employee who is eligible for maternity leave, butwho fails to give notice before leaving employment, is still entitled tomaternity leave if, within two weeks of leaving work, she gives notice andprovides her employer with a medical certificate giving the date ofdelivery or the estimated date of delivery, and stating the period orperiods of time within the 17 weeks before the date of delivery or esti-mated delivery date that the normal duties of employment could not beperformed because of a medical condition arising from the pregnancy

¶10,040



(s. 55, ¶40,655). The maternity leave of such an employee will consist ofthe time, as described in the medical certificate, that she is unable to workbecause of her medical condition, plus the difference between that timeand the time she would receive if she had given notice in the standardfashion. An employee who does not give notice at all is still entitled to amaternity leave not exceeding that of an employee who does give notice(s. 56, ¶40,656).

Maternity leave ends 17 weeks after the date of delivery (s. 57,¶40,657). However, if the date of delivery of the child occurs after thedate estimated in the medical certificate obtained by the mother, themother is additionally entitled to a period of time equal to the timebetween the estimated date and the date of delivery. (s. 57.1, ¶40,657a).An employee may end her maternity leave earlier than set out in her noticeby giving her employer written notice at least two weeks or one payperiod, whichever is longer, before the day she wishes to end the leave(s. 57.1, ¶40,657a).

Employers may not layoff or terminate the employment of anemployee who is eligible for maternity leave solely because she is preg-nant, gives notice of her intent to take maternity leave or takes leave(s. 60, ¶40,660). Following her leave, she must be reinstated, if shewishes, to the position she occupied when her leave began, or a compa-rable position, with at least the wages and benefits she was earningimmediately before the leave began (s. 60, ¶40,660). Her employment isdeemed continuous for the purpose of pension and other benefits. Anemployee who has been unjustly laid off or terminated under this provi-sion may file a complaint with an employment standards officer within sixmonths of the lay off or termination (s. 60(5), ¶40,660). If the employee iswrongly laid off or terminated, the officer may order the employer to paycompensation to the Director of Employment Standards for any loss theemployee incurred as a result of the contravention, or to reinstate theemployee, or both (s. 96.1(1), ¶40,696a). If such an order is made, theemployer is obligated to pay administrative costs of $100, or 10 per cent ofany compensation ordered, whichever is more, to a maximum of $1,000(s. 96.1(2), ¶40,696a). The maximum for recovery of unpaid wages, setout in s. 96(2), ¶40,696, does not apply to a compensation order madeunder these provisions (s. 96.1(4), ¶40,696a). Anyone named in such anorder may request the Director of Employment Standards to refer thematter to the Manitoba Labour Board (s. 110(1), ¶40,710). The requestmust be made within 30 days after the order is served on the person(s. 110(1.1), ¶40,710).

These requirements are minimum requirements only: any enactment,agreement, common law right or custom that provides the employee withentitlements equal to or greater than those provided by the Code is

¶10,040



binding on the employer, but any agreement, enactment, common lawright or custom that provides entitlements lesser than those specifiedunder the Code is overridden by the Code (s. 3, ¶40,603). The fact thatthe employee agreed to the lesser entitlement is no defence to a prosecu-tion or proceeding under the Code (s. 4, ¶40,604).

When the business or part of the business of an employer is disposedof, such as by sale, lease, transfer or merger such that the control, direc-tion or management of the business is given to another person, including areceiver, the employment of an employee is deemed to be continuous anduninterrupted (s. 5, ¶40,605). Thus, the rights of employees to take aleave of absence are preserved as if there had been no interruption in theemployment of the employees.

Pursuant to the Minimum Wages and Working Conditions Regulation,the maternity and parental leave provisions of the Code do not apply tovolunteers, beneficiaries under a rehabilitation plan or project, or personsworking in training or work experience programs under government orschool board authority, who do not receive wages (Reg. s. 2, ¶40,802); orto farmers, fishers, and horticulturalists (Reg. s. 3, ¶40,803).

Parental Leave

Employees who have been employed by the same employer for atleast seven consecutive months and who either adopt a child under thelaws of Manitoba, or who become natural parents of a child are entitled toup to 37 weeks of parental leave (s. 58, ¶40,658). To be eligible, they mustprovide written notice to the employer of the date on which they intend tobegin their leave at least four weeks before the leave is to begin. If they failto provide such notice, their leave entitlement is reduced by the number ofdays by which the notice given falls short of four weeks.

Parental leave must commence not later than the first anniversary ofthe date on which the child is born or comes into the care and custody ofthe employee (s. 58, ¶40,658).

If an employee is taking both maternity and parental leave, the leavesmust be continuous, unless the employer and the employer agree other-wise, or a collective agreement provides otherwise (s. 59, ¶40,659).Parental leave ends 37 weeks after it began. However, if the employeegives written notice to the employer, at least four weeks before the dayspecified in the notice as the day on which the employee intends to beginthe leave, parental leave ends 37 weeks after it began less the number ofdays so provided (s. 59.1, ¶40,659a).

An employee may end parental leave earlier than set out in his or hernotice by giving his or her employer written notice at least two weeks or

¶10,040



one pay period, whichever is longer, before the day he or she wishes toend the leave (s. 59.1, ¶40,659a).

The provisions regarding reinstatement on expiration of leave, con-tinuous employment, and the prohibition against dismissal on the groundsof application for leave are the same as those covering maternity leave(see above). As well, the persons excluded from coverage are the same asthose listed above.

(CCH ¶6021; 6022)

¶10,045 New Brunswick

Maternity Leave

The Employment Standards Act provides that pregnant employeesare entitled to a period of maternity leave without pay. The employee mustprovide her employer with a medical certificate stating that the employeeis pregnant and specifying the estimated date of delivery. An employeewho intends to take maternity leave must advise her employer of thisintention four months before the projected date of delivery and give heremployer two weeks notice of the commencement date of the leave (s. 43,¶46,643).

The period of maternity leave shall consist of a period not exceeding17 weeks. Maternity leave shall begin no earlier than 11 weeks before theestimated delivery date set out in the medical certificate and end no laterthan 17 weeks following the actual date of delivery (s. 43, ¶46,643).However, where the duties of the job cannot reasonably be carried out bythe pregnant employee or the employee’s work performance is being mate-rially affected by the pregnancy, the employer may require the employeeto commence her maternity leave earlier (s. 43, ¶46,643).

At the end of the maternity leave if the employee reports for work theemployer must reinstate her in the position she held at the time her leavebegan or in an equivalent position with the same wages and with no loss ofseniority or benefits accrued up to the commencement of the leave (s. 44,¶46,644). The Act also provides that seniority continues to accrue duringthe leave at the same rate that seniority would have been earned had theleave not been taken (s. 44.04, ¶46,644d) and that the employee will bedeemed to have been continuously employed with the same employerduring the leave (s. 44.04(2), ¶46,644d).

The employer is prohibited from dismissing, laying off, suspending, orrefusing to employ an employee or person solely on grounds arising fromthe fact of pregnancy (s. 42, ¶46,642).

¶10,045



Child Care Leave

The Employment Standards Act states that an employee whobecomes the father or mother of a newborn or adopted child, is entitled tochild care leave without pay of up to 37 weeks. If both parents areemployees the child care leave may be taken by either employee or sharedby the employees. Child is defined to mean a person under 19 years of age(ss. 44.02(1), 44.02(2), ¶46,644b).

Child care leave may not begin before the child comes into the careand custody of the employee and must end no later than 52 weeks afterthe child comes into the care and custody of the child (s. 44.02(8),¶46,644b). The child care leave of a mother who has taken maternityleave must begin when the maternity leave ends unless the employer andthe employee agree otherwise (s. 44.02(10)). However, where the child ishospitalized at the time the maternity leave expires, child care leave maybe postponed until the child comes into the care and custody of theemployee (s. 44.02(11)).

A natural parent who intends to take child care leave must providethe employer with a medical certificate stating the expected or actual dateof birth and, in the absence of an emergency, four weeks’ written notice ofthe commencement date and length of the leave (s. 44.02(3), ¶46,644b).

An adoptive parent who intends to take child care leave must providethe employer with written notice of such intention four months before theanticipated day on which will be placed with the employee or in the eventof an emergency as soon as possible before the placement of the child. Theemployee must also provide the employer with proof of the actual adop-tion and notify the employer of the commencement date and length of theleave (s. 44.02(4), ¶46,644b).

The provisions relating to seniority benefits and reinstatement on theexpiration of child care leave are the same as those covering maternityleave (s. 44.02(12), ¶46,644b).

The maximum combined child care leave that may be taken by twoemployees with respect to the same birth or adoption is 37 weeks(s. 44.02(12.1), ¶46,644b) and the maximum combined maternity andchild care leave that can be taken by one or two employees is 52 weeks(s. 44.02(12.2), ¶46,644b).

(CCH ¶6031; 6032)

¶10,045



¶10,050 Newfoundland and Labrador

Pregnancy Leave

Under the Labour Standards Act a pregnant employee is entitled to a17-week unpaid leave of absence if she has been employed by the sameemployer for a period of 20 consecutive weeks immediately before thebirth date (s. 40(1), ¶51,300; s. 42(1), ¶51,302). As such, an employeemay begin her leave no earlier than 17 weeks prior to the expected birthdate. The pregnant employee is required to provide her employer with atleast two weeks’ written notice of the date her leave is to begin, and acertificate from a medical practitioner stating the estimated birth date(ss. 40(2) and 40(3), ¶51,300).

It is important to note that when a business is sold, transferred orassigned to another employer, any employees who remain employed areconsidered to have had continuous employment. As such, entitlement topregnancy leave is based upon the length of time an employee has workedfor the business, not for the current owner (s. 6, ¶51,266).

An employee who stops working as a result of complications causedby her pregnancy or because of a birth, still-birth or miscarriage thathappens earlier than the expected birth date is not required to provide thetwo-week written notice, or a certificate stating the estimated birth date.However, within two weeks of stopping work, the employee must providewritten notice of the date the pregnancy leave is to begin or began and acertificate from a medical practitioner stating either (a) the fact that theemployee is unable to perform her work due to complications arising outof the pregnancy and the expected birth date, or (b) the date of the birth,still-birth or miscarriage, and the date that the employee was expected togive birth (s. 41, ¶51,301).

Pregnancy leave ends after 17 weeks where an employee is entitled totake parental leave. Where an employee is not entitled to take parentalleave, her pregnancy leave ends either 17 weeks after it began or 6 weeksafter the birth, still-birth or miscarriage, whichever is later (ss. 42(1) and42(2), ¶51,302).

An employee may end her pregnancy leave before the day providedfor as long as she provides her employer with at least 4 weeks’ writtennotice of the day she intends to resume work (s. 42(3), ¶51,302). As well,an employee who does not intend to take parental leave once her preg-nancy leave is finished must notify her employer at least 4 weeks beforethe date on which she intends to return to work (s. 42(4), ¶51,302).

An employee who has given notice to begin pregnancy leave maychange the notice to an earlier date by giving the employer 2 weeks’written notice prior to the earlier date or to a later date by giving the

¶10,050



employer 2 weeks’ written notice before the date on which the leave wasto begin. An employee who has given notice to end pregnancy leave maychange the notice to an earlier date by giving the employer 4 weeks’written notice before the earlier date or to a later date by giving theemployer 4 weeks’ written notice before the date on which the leave wasto end (s. 43.6, ¶51,303f).

Once pregnancy leave is completed the employee must be reinstatedwith the same or comparable wage, duties, benefits and position as sheheld before the leave commenced (s. 43.7, ¶51,303g). Unless there is amutual employer-employee agreement, the period of pregnancy leave doesnot count towards the accumulation of rights, benefits and privileges.However, for the purposes of the Act, the continuity of employment isdeemed not to have been broken by the absence (s. 43.8, ¶51,303h).

An employer may not dismiss or give notice of dismissal to anemployee for the reason only that (a) she informs the employer that she ispregnant, (b) she informs the employer that she intends to take pregnancyleave, or (c) she is absent by reason of pregnancy leave as permitted bythe Act. Where an employee is dismissed for any of these reasons, theonus of proving that the dismissal was unrelated to pregnancy leave restswith the employer (s. 43.9, ¶51,303i).

Parental Leave

An employee who has been employed by the same employer for20 consecutive weeks, and is the parent of a child, is entitled to an unpaidleave of absence of 35 weeks upon the birth of a child or the coming intocare and custody of a child for the first time (s. 43.3(1), ¶51,303c;s. 43.5,¶51,303e). It is important to note that when a business is sold, transferredor assigned to another employer, any employees who remain employed areconsidered to have had continuous employment. As such, entitlement toparental leave is based upon the length of time an employee has workedfor the business, not for the current owner (s. 6, ¶51,266).

Parental leave must begin within 35 weeks of the birth or coming intocare and custody of the child except in the case of a female employee whohas also taken pregnancy leave, in which case parental leave begins oncepregnancy leave ends, provided that the child has come into the care andcustody of the mother at that point (ss. 43.3(2)and 43.3(3), ¶51,303c).

An employee is required to provide his or her employer with twoweeks’ written notice of the day the parental leave is to begin exceptwhere the child comes into the care and custody of the parent sooner thanexpected. In this case, the parental leave begins on the day the employeestopped working, and the employee is required to provide written notice

¶10,050



within two weeks’ of stopping work that he or she wishes to take parentalleave (s. 43.3(4), ¶51,303c; s. 43.4, ¶51,303d).

If the employee wishes to end his or her parental leave before the full35-week period is completed, he or she must provide his or her employerwith at least four weeks’ written notice of the anticipated date of return towork (s. 43.5, ¶51,303e).

An employee who has given notice to begin parental leave maychange the notice to an earlier date by giving the employer two weeks’written notice prior to the earlier date or to a later date by giving theemployer two weeks’ written notice before the date on which the leavewas to begin. An employee who has given notice to end parental leave maychange the notice to an earlier date by giving the employer four weeks’written notice before the earlier date or to a later date by giving theemployer four weeks’ written notice before the date on which the leavewas to end (s. 43.6, ¶51,303f).

Once parental leave is completed the employee must be reinstatedwith the same or comparable wage, duties, benefits and position as he orshe held before the leave commenced (s. 43.7, ¶51,303g). Unless there is amutual employer-employee agreement, the period of parental leave doesnot count towards the accumulation of rights, benefits and privileges.However, for the purposes of the Act, the continuity of employment isdeemed not to have been broken by the absence (s. 43.7, ¶51,303g).

An employer may not dismiss or give notice of dismissal to anemployee for the reason only that (a) he or she informs the employer thathe or she intends to take parental leave or (b) he or she is absent byreason of parental leave as permitted by the Act. Where an employee isdismissed for any of these reasons, the onus of proving that the dismissalwas unrelated to parental leave rests with the employer (s. 43.9,¶51,303i).

(CCH ¶6041; 6043)

¶10,055 Nova Scotia

Maternity Leave

A pregnant employee who has been employed by her employer for atleast one year, is entitled to an unpaid leave of absence for up to 17 weeks.Leave may begin no earlier than 16 weeks before the expected date ofdelivery and not later than the date of delivery (s. 59, ¶55,459). Theemployee must, where the employer so requests, provide a certificate of alegally qualified medical practitioner setting out the expected dated ofdelivery. The employee must also give the employer four weeks’ notice ofthe date she will begin pregnancy leave and the date she will return to

¶10,055



work unless the employee is taking the maximum leave to which she isentitled (s. 59D, ¶55,459d). The employer may, however, require a preg-nant employee, who has been employed by the employer for at least ayear, to take an unpaid leave of absence while the duties of her positioncannot reasonably be performed by a pregnant woman or the performanceof the employee’s work is materially affected (s. 59A, ¶55,459a)

It is important to note that if a business is sold, transferred or amalga-mated, any employees who remain with the business are considered tohave had continuous employment. As such, entitlement to maternity leaveis based upon an employee’s length of service with the business itself, notwith the post-sale owner (s. 12, ¶55,412).

An employee who has given notice to begin or end pregnancy leavemay change the notice (a) to an earlier date if the notice is amended atleast four weeks prior to the earlier date, (b) to later date if the notice isamended at least four weeks before the original date and (c) by addingthe date the employee will return to work if the notice is amended at leastfour weeks before the employee would have been required to return towork (s. 59D, ¶55,459d). Where an employee is advised by a legallyqualified medical practitioner that she should begin leave earlier thanplanned due to a medical condition resulting from the pregnancy or wherethe delivery occurs sooner than expected, the employee must give theemployer as much notice as she reasonably can (s. 59D, ¶55,459d). Wherethe employer so requests, all notices respecting pregnancy leave shall beput in writing (s. 59D, ¶55,459d).

Upon termination of pregnancy leave the employee must be permittedto resume her employment in her former position or where that position isnot available, to a comparable position at not less than the same wage andbenefits and with no loss of seniority or benefits accrued up to the com-mencement of the leave (s. 59G, ¶55,459g). If the employer’s operationswere suspended or discontinued while the employee was on pregnancyleave and have not resumed when the leave ends, the employer mustcomply with the notice of termination provisions, and when the operationsresume, reinstate the employee in accordance with the establishedseniority system, if any (s. 59G, ¶55,459g).

During the pregnancy leave, the employer must inform the employeein writing that she has the option of maintaining her benefits during theperiod of leave. The employer must notify the employee of this option farenough in advance to avoid interruption of benefits. Following suchnotice, the employee may, in writing, opt to maintain her benefits and, ifshe so elects, shall enter into an arrangement whereby she pays both herown and the employer’s cost of providing the benefits. The Act goes on tostate that nothing prevents an employer from contributing to the cost ofsuch benefits (s. 59F, ¶55,459f).

¶10,055



The employer is prohibited from discharging, laying-off, suspending,intimidating, penalizing, disciplining or discriminating against anemployee because that employee has taken, indicated an intention to takeor the employer believes that the employee will take pregnancy leave.Without limiting the meaning of ‘‘discriminate’’ an employer discriminatesagainst a person where the employer discharges, lays off or suspends theemployee within three months of the intention to take or the actual takingof pregnancy leave unless (a) the employee is guilty of wilful misconduct,disobedience, or neglect of duty that has not been condoned by theemployer, (b) the employer has just cause to discharge or suspend theemployee, (c) the reason for the discharge or lay-off is beyond the controlof the employer and the employer has exercised due diligence to foreseeand avoid the cause of the discharge or lay-off or (d) the employer, ingood faith and for legitimate business reasons, ceases operations or elimi-nates the position in which the employee is employed and is unable toprovide reasonable alternative employment to the employee (s. 30,¶55,430).

Where a pregnant employee is denied her right to a leave of absenceunder the Act, or any of the provisions with respect to her return to work,seniority, or benefits is violated, the employee may make a complaint tothe Director of Employment Standards (s. 60, ¶55,460). If a violation isfound, the Director may require that the employer do any act to complywith the Act, or compensate or rectify any injury. The Director’s powersinclude the power to reinstate the employee (s. 21(3), ¶55,421).

Under the Regulations, domestics in private homes are exemptedfrom the foregoing provisions of the Code (Reg. s. 2, ¶55,552).

Parental Leave

Under the Labour Standards Code, every employee who has beenemployed by an employer for at least one year and who becomes a naturalor adoptive parent of a child or children, is entitled to an unpaid leave ofabsence of up to 52 weeks. However, if the parent also takes pregnancyleave, the parent is entitled to an unpaid leave of absence up to 35 weeks’parental leave. Entitlement to parental leave is available to both parents.The maximum combined pregnancy leave and parental leave to which anemployee is entitled is 52 weeks. An employee who intends to takeparental leave must provide, in writing if so requested by the employer,four weeks’ notice of the date the employee will begin parental leave andfour weeks’ notice of the date the employee will return to work unless theemployee chooses to take the maximum leave to which the employee isentitled (ss. 59B, 59D, ¶55,459b, 55,459d). Where the employer sorequests, the employee must provide a certificate of a legally qualifiedmedical practitioner or, in the case of an adoption, the certificate of an

¶10,055



official of the Department of Community Services as proof of entitlementto parental leave (s. 59E, ¶55,459e).

Where an employee takes pregnancy leave and the child arrives in theemployee’s home during the pregnancy leave, parental leave begins imme-diately on the expiry of the pregnancy leave without the employeereturning to work. In all other cases, parental leave may begin at any timefollowing the birth or arrival of the child or children in the employee’shome and ends not later than 52 weeks after the child or children firstarrive in the employee’s home (s. 59B, ¶55,459b).

It is important to note that if a business is sold, transferred or amalga-mated, any employees who remain with the business are considered tohave had continuous employment. As such, entitlement to parental leaveis based upon an employee’s length of service with the business itself, notwith the post-sale owner (s. 12, ¶55,412).

Where parental leave has begun, and the child is hospitalized for aperiod exceeding or likely to exceed one week, the employee is entitled toresume work and defer the unused portion of the parental leave until thechild is discharged from hospital. An employee is entitled to only oneinterruption and deferral of parental leave (s. 59C, ¶55,459c). Anemployee who intends to use the deferral option must give the employeras much notice as possible of the dates of resumption of work and resump-tion of leave and where requested, provide the employer whatever proof isreasonable to support the employee’s entitlement to the option (ss. 59D,59E, ¶55,459d, 55,459e).

The provisions relating to the maintenance of benefits, reinstatementon expiry of leave, and the prohibitions against discharge, lay-off or dis-crimination are the same as those covering pregnancy leave (See above).

Under the Regulations, domestics in private homes are exemptedfrom the foregoing provisions of the Code (Reg. s. 2, ¶55,552).

(CCH ¶6051; 6052)

¶10,060 Ontario

Maternity Leave

Under Part XIV of the Employment Standards Act, 2000, a pregnantemployee who started employment with her employer at least 13 weeksbefore the estimated date of delivery is entitled to a leave of absence,without pay, of 17 weeks (ss. 46(1), ¶61,046 and 47, ¶61,047).

It is important to note that if a business is sold (defined as leased,transferred or disposed of in any other manner) (s. 9(3), ¶61,009), or if abuilding services provider is replaced by a new provider, any employees

¶10,060



who remain with the business under its new ownership, or with the newprovider, are considered to have had continuous employment, as long asthey were hired within 13 weeks of their last day of employment with theseller or original provider (ss. 9(2), ¶61,009 and 10(3), ¶61,010). As such,entitlement to maternity leave is based upon how long an employee hasbeen employed at the business or premises, and not how long theemployee has been employed by the most recent owner or most recentprovider (ss. 9(1), ¶61,009 and 10(2), ¶61,010).

The employee may begin her leave no earlier than the earlier of 17weeks before her due date and the day on which she gives birth (s. 46(2),¶61,046). The latter date does not apply to a pregnancy that ends with astill-birth or miscarriage (s. 46(3), ¶61,046). The employee may begin herleave no later than the earlier of her due date and the day on which shegives birth (s. 46(3.1), ¶61,046).

The employee must furnish to her employer two weeks’ notice inwriting of the day she wishes her leave to commence and, if requested byher employer, a certificate from a legally qualified medical practitionerstating the due date (s. 46(4), ¶61,046). Where an employee stops workbecause of complications caused by her pregnancy or because of a birth,still-birth or miscarriage that happens earlier than the employee wasexpected to give birth, the employee must, within two weeks of stoppingwork, give the employer written notice of the date the pregnancy leavebegan or is to begin and, if the employer so requests, a certificate of aqualified medical practitioner stating either the expected date of birth andthat the complications arising from the pregnancy prevent the employeefrom performing her duties, or the date of the birth, still-birth or miscar-riage and the date the employee was expected to give birth (s. 46(6),¶61,046). An employee who has given notice to begin pregnancy leavemay change the notice to an earlier date by giving the employer at leasttwo weeks’ written notice before the earlier date, or to a later date bygiving the employer at least two weeks’ written notice before the day setout in the original notice (s. 46(5), ¶61,046).

The pregnancy leave of an employee entitled to parental leave ends17 weeks after the leave began. The pregnancy leave of an employee whodoes not qualify for parental leave ends on the later of 17 weeks after theleave began or six weeks after the birth, still-birth or miscarriage.(s. 47(1), ¶61,047). The pregnancy leave of an employee will end earlierthan either of the days above where the employee gives the employer atleast four weeks’ written notice of the day she wishes to return to work(s. 47(2), ¶61,047). An employee who has given notice to end pregnancyleave may change the notice to an earlier date by giving the employer atleast four weeks’ written notice before the earlier date or to a later date bygiving the employer at least four weeks’ written notice before the day

¶10,060



indicated in the original notice (s. 47(3), ¶61,047). An employee whowishes to terminate her employment during her pregnancy leave mustprovide the employer with at least four weeks’ written notice of her termi-nation, except where the employee has been constructively dismissed(ss. 47(4), (5), ¶61,047).

The period of an employee’s pregnancy leave is included in any calcu-lation of her length of employment (whether or not it is active employ-ment), length of service (whether or not it is active service), or seniority,for the purpose of determining her rights under an employment contract.However, the period of an employee’s pregnancy leave is not includedwhen determining whether the employee has completed any probationaryperiod of employment (s. 52, ¶61,052).

If a public holiday falls on a day that would not ordinarily be aworking day, an employee who is on maternity or parental leave is entitledto public holiday pay for that day, but does not have any other entitle-ments with respect to the public holiday (s. 29(2.1), ¶61,029).

During pregnancy leave an employee continues to participate in thefollowing benefit plans that are related to her employment unless sheelects in writing not to do so: pension plans, life insurance plans, acci-dental death plans, extended health plans, dental plans, and any otherbenefit plans that are prescribed by regulation. The employer must con-tinue to make contributions to the benefit plans unless the employee givesthe employer notice in writing that she does not intend to pay her contri-butions, if any (s. 51, ¶61,051).

Nothing in the Employment Standards Act suggests that there is arequirement that an employer provide an employee who takes pregnancyor parental leave with paid vacation (Quirk, Grabarczyk et al. v. AllstateInsurance Company of Canada and Ministry of Labour). The Act onlyrequires that any time spent by an employee on pregnancy or parentalleave must be included in any calculation of the employee’s service withthe company. So, while vacation credits continued to accrue foremployees on pregnancy or parental leave, the company in that case wasnot obligated to pay vacation pay to those employees.

When the pregnancy leave ends, the employer must reinstate theemployee to her former position, if it still exists, or to a comparableposition, if it does not (s. 53(1), ¶61,053) at wages that are at least equalto the greater of the wages the employee was most recently paid or thewages the employee would have been earning had she not taken the leave(s. 53(3), ¶61,053). An employer is not obligated to reinstate theemployee if her employment was ended solely for reasons unrelated to theleave (s. 53(2), ¶61,053).

¶10,060



An employee, who would otherwise have to forfeit vacation or vaca-tion pay because he or she is on leave, may defer taking vacation until theleave expires or until some later date agreed to by the employee and theemployer. Alternatively, such an employee may forego vacation andreceive vacation pay instead (s. 51.1, ¶61,051).

An employer cannot intimidate, dismiss, or otherwise penalize anemployee or threaten to do so because the employee is or will becomeeligible to take, intends to take, or takes a leave under Part XIV of the Act(s. 74, ¶61,074). If an employer contravenes section 74, in addition to anyfine or term of imprisonment imposed, a court may require that theemployee be paid any wages owed or require that the employee be rein-stated, or both, or otherwise order the employer to take a specific actionor refrain from taking a specific action (s. 133, ¶61,133). Failure tocomply with such orders will result in the imposition of a fine or term ofimprisonment, or both, on the employer (s. 134, ¶61,134).

Despite the fact that the collective agreement in question in Districtof Parry Sound Social Services Administration Board v. OntarioPublic Service Employees Union, Local 324 provided that the dismissalof a probationary employee could not be grieved, the Supreme Court ofCanada held that the probationary employee in this case, who was termi-nated after returning to work from a maternity leave, could grieve thedismissal. The substantive rights and obligations of human rights andother employment-related statutes establish a floor beneath which anemployer and a union cannot contract. The termination of an employee fordiscriminatory reasons is an arbitrable ‘‘difference’’ over which an arbi-trator has authority to interpret and apply the substantive rights of theHuman Rights Code.

In Director of Employment Standards v. Roos Family Shoes(Brampton) Ltd. et al., a pregnant employee, who was laid off after aone-week absence related to complications during her pregnancy, wasfound to have been terminated in violation of the Act. An employee’s rightto apply for maternity leave arises from the fact of pregnancy, and doesnot arise from or depend upon her application for such leave. As a result,the fact that the employee did not specifically make an application formaternity leave cannot extinguish her right to apply.

Parental Leave

Parental leave provisions are also contained in Part XI of theEmployment Standards Act (ss. 34 to 45). Parent is defined to include aperson with whom a child is placed for adoption and a person who is in arelationship of some permanence with a parent of a child and who intendsto treat the child as his or her own (s. 34).

¶10,060



Following the birth of a child or when the child first comes into thecustody and care of the parent, each parent who has been employed by anemployer for at least 13 weeks, is entitled to a leave of absence, withoutpay, of 35 weeks if pregnancy leave was taken and 37 weeks if onlyparental leave is taken. The parental leave of a mother who has takenpregnancy leave must begin when the pregnancy leave ends unless thechild had not yet come into the custody and care of the parent for the firsttime. This exception recognizes situations where the child is hospitalizedafter birth. However, should the child first come home and then have to behospitalized, the parental leave will continue to run. In all other cases, theparental leave must begin no later than 52 weeks after the child is born orfirst comes into the custody and care of the parent (s. 38).

An employee who intends to take parental leave must give theemployer at least two weeks’ written notice of the date the leave is tobegin (s. 38). An employee who has given notice to begin parental leavemay change the notice to an earlier date by giving the employer at leastfour weeks’ written notice before the earlier date or to a later date bygiving the employer at least two weeks’ written notice before the date theleave was to have ended (s. 41). The above notice provision does not applywhere the employee stops working because the child comes into thecustody and care of the parent sooner than expected. In that situation, theemployee must give the employer written notice that the employee wishesto take parental leave within two weeks of stopping working and theparental leave begins on the day the employee stopped working (s. 39).

Parental leave ends 35 or 37 weeks (see above) after the leave beganor on an earlier day if the employee gives the employer at least four weeks’written notice of the day he or she wishes to return to work (s. 40). Anemployee who has given notice to end parental leave may change thenotice to an earlier date by giving the employer at least two weeks’ writtennotice before the earlier date or to a later date by giving the employer atleast four weeks’ written notice before the date the leave was to havebegun (s. 41).

The provisions regarding continuation of seniority and benefits, rein-statement on the expiration of the leave and the prohibitions againstdiscipline or dismissal because of leave are the same as those coveringpregnancy leave (see above).

(CCH ¶6061; 6062)

¶10,060



¶10,065 Prince Edward Island

Maternity Leave

The Employment Standards Act provides that a female employee isentitled to maternity leave without pay. The employee is not entitled tosuch leave unless she has worked for the same employer for 20 continuousweeks (s. 19, ¶72,719).

The Act also requires that the employee provide her employer with amedical certificate certifying that she is pregnant and giving the esti-mated date of birth. The employee must notify her employer of her inten-tion to take maternity leave not less than four weeks before the date onwhich her leave is to begin, specifying the dates that the leave will com-mence and end. The employer must grant the leave, if these requirementshave been met, for not more than 17 weeks, commencing at any time inthe 11 weeks before the estimated date of birth and, where the actual dateof birth is later than anticipated, the employee is entitled to not less thansix weeks leave after the actual date of birth (s. 20, ¶72,720).

The employer may require the employee to begin maternity leave notmore than three months before the estimated date of birth where preg-nancy would unreasonably interfere with the performance of her work.The burden of proof in respect to interference with the performance of herduties rests with the employer (ss. 20(3), (4), ¶72,720).

When the maternity leave expires, the employee must be permitted toresume her work with wages, duties, benefits, and position not less thanthose she would have received had she not been granted the leave. Section21 also provides that the employee suffers no loss of seniority or pensionbenefits but the employer is not obligated to pay pension benefits duringthe period of the leave (s. 21, ¶72,721).

There is a prohibition against dismissal of an employee by reason onlyof pregnancy, temporary disability resulting from pregnancy, or applica-tion for maternity leave (s. 18, ¶72,718).

These maternity leave provisions apply also to employees whoseterms and conditions of work are established by a collective agreementunder the Labour Act (s. 2(4), ¶72,702).

Parental/Adoption Leave

The Employment Standards Act provides that every employee whohas been employed for a continuous period of at least twenty weeks andwho becomes the natural mother or father of a child; assumes actual careand custody of a child for the purposes of adoption; or adopts or obtainslegal guardianship of a child under the law of the province, is entitled to

¶10,065



parental leave without pay consisting of a continuous period of up to 35weeks (s. 22(1), ¶75,722). Section 22(1) requires that the employeesubmit an application for the parental leave at least four weeks before theday on which the employee intends to commence the leave, specifying thedates of commencement and termination of the leave. However, if a parentis taking parental leave in the case of adoption or legal guardianship, theparent can take up to 52 weeks of leave. The total combined amount ofleave that may be taken by one or two employees for maternity andparental leave with respect to the same event cannot exceed 52 weeks(s. 22(2), ¶75,722). (However, if the child was born or adopted prior toDecember 31, 2000, the maximum parental leave entitlement in relation tothat child is 17 weeks.)

In the case of adoption or legal guardianship, an application forparental leave is not required earlier than the date on which the employeeis notified of the placement of the child (s. 22(2), ¶75,722).

Parental leave must be taken only during the 52-week period com-mencing on the date of the child’s birth or the date on which the childcomes into the custody of the employee, whichever is later (s. 22(3),¶75,722). Where an employee intends to take parental leave in addition tomaternity leave, however, the employee must commence the parentalleave immediately on expiry of the maternity leave, without a return towork, unless the employee and the employer agree otherwise (s. 22(6),¶75,722). An employee may return to work before the expiry of thegranted parental leave provided that he or she gives the employer twoweeks’ written notice of the proposed return date (s. 22(5), ¶75,722).

The sections of the Act relating to reinstatement at the same or acomparable position after maternity leave apply, with necessary modifica-tions, to parental, adoption and guardianship leave (s. 22(4), ¶72,722)(see above).

These parental/adoption leave provisions apply also to employeeswhose terms and conditions of work are established by a collective agree-ment under the Labour Act (s. 2(4), ¶72,702).

(CCH ¶6071; 6072)

¶10,070 Quebec

Maternity Leave

The Labour Standards Act states that a employee may be absentfrom work without pay for a medical examination or an examination by amidwife related to her pregnancy and that the employee should advise heremployer of the time she will be absent as soon as possible (s. 81.3,¶81,011c).

¶10,070



The Act states that a pregnant employee is entitled to maternity leavewithout pay of not more than 18 consecutive weeks. If the employee’sdelivery date occurs after the expected date, the employee will be entitledto an extension of at least two weeks of maternity leave after the delivery(s. 81.4.1). However, the maternity leave can end no later than 18 weeksafter the week of delivery and it may not begin before the 16th weekpreceding the expected date of birth (s. 81.5, ¶81,011e). An employer canconsent to a maternity leave that is longer than the 18-week maximumwhere an employee so requests. The employer can also consent to theemployee taking her maternity leave in intervals of her choosing before orafter the expected date of delivery. Where the maternity leave begins onthe week of delivery, that week will not be taken into account in calcu-lating the maximum 18-week period of maternity leave (s. 81.4,¶81,011d).

If the child is hospitalized during the maternity leave, the leave maybe suspended during the hospitalization, with agreement by the employer.In addition, if, before the expiry date of the leave, an employee sends theemployer notice accompanied by a medical certificate stating that thehealth of the child or of the employee requires an extension, the employeeis entitled to an extension for the duration indicated in the medicalcertificate (s. 81.14.2, ¶81,011nb). Furthermore, at the request of theemployee, maternity leave may, in the cases where the child is hospital-ized or where the employee is absent due to illness or accident, be dividedinto weeks and be on conditions, for the duration, and within the timeperiod prescribed by by-law (s. 81.14.1, ¶81,011na).

A pregnant woman who provides her employer with a medical certifi-cate indicating that her health or the health of her unborn child is at riskat work, will be entitled to special maternity leave, without pay, for theduration of the risk indicated in the certificate. However, this specialmaternity leave will be considered regular maternity leave from the fourthweek preceding the expected delivery date (s. 81.5.1, ¶81,011ea).

Where there is a termination of pregnancy before the beginning of the20th week of the pregnancy, the employee is entitled to a special mater-nity leave, without pay, for a period of no longer than three weeks, unlessa medical certificate attests that the employee needs an extended leave. Ifthe termination occurs thereafter, the employee is entitled to a maternityleave of up to 18 consecutive weeks, beginning from the week of thetermination (s. 81.5.2, ¶81,011eb).

Where a termination of pregnancy or a premature birth occurs, theemployee must give written notice to the employer as soon as possible,informing the employer of the event and the expected date of her returnto work, accompanied by a medical certificate attesting to the event(s. 81.5.3, ¶81,011ec).

¶10,070



An employer is entitled to a written notice of at least three weeks,indicating the specific date on which the leave will commence, and alsothe date of the employee’s return to work. This notice must also have amedical certificate attesting to her pregnancy and the expected date ofbirth. Less than three weeks notice is acceptable if the medical certificateestablishes the need to stop working within a shorter period (s. 81.6,¶81,011f).

Six weeks before the expected birth date, an employer is entitled torequire a pregnant worker to produce a medical certificate that says, ineffect, she is fit for work. If the employee fails to provide this certificatewithin eight days, the employer may oblige her to take the leave immedi-ately by sending her written notice to that effect (s. 81.8, ¶81,011h).

Ordinarily, the employee would return to work on the date specifiedin the notice of intent to take maternity leave, but she may return to workbefore such a date after having given the employer at least three weekswritten notice of her new date of return to work (s. 81.13, ¶81,011m). Ifshe returns to work less than two weeks after giving birth, the employermay require a medical certificate stating that she is fit to resume work(s. 81.9, ¶81,011i).

If an employee does not return to work at the end of the leave, she ispresumed to have resigned (s. 81.14, ¶81,011n).

The employee’s participation in the group insurance and pensionplans at work will not be affected by the absence from work, subject toregular payment of contributions under the plans. Other advantages avail-able to employees on maternity leave may be set out by regulation(s. 81.15, ¶81,011o).

At the end of a maternity leave, the employee must be reinstated toher former position, with the same benefits, including the wage she wouldhave been entitled to had she remained at work. If her job no longer existswhen she returns, she must be extended whatever rights or privileges towhich she would have been entitled had she not taken the leave(s. 81.15.1, ¶81,011oa).

In Sicinsky v. Foster Advertising Ltd., a full-time clerk typist wasabsent approximately 30 per cent of her regular working time during aneight-week period as a result of undergoing various tests for a difficultpregnancy. Her employer advised her to consider working part-time. Sherefused and was fired.

The Court allowed her appeal and held that substantial absenteeism,if caused by pregnancy, was not ‘‘another just and sufficient cause’’ fordismissal. The law does not absolutely prohibit the dismissal of a pregnant

¶10,070



employee, but it is clearly intended to cover situations caused by preg-nancy.

An Act respecting occupational health and safety allows for reas-signment of pregnant workers who provide medical certificates attestingthat their working conditions may be physically dangerous to the workeror the unborn child (s. 40, ¶77,290). The worker retains all benefitsattached to her regular position before the reassignment and must bereinstated to her regular position at the end of the reassignment or periodof absence (s. 43, ¶77,293). Additionally, a worker who furnishes heremployer with a certificate attesting that her working conditions involverisks for the child she is breast-feeding may request to be assigned toother duties involving no such risks that she is reasonably capable ofperforming (s. 46, ¶77,296).

(CCH ¶6081)

Parental

See the Family Care Leave provisions located at ¶10,510.

(CCH ¶6082)

¶10,075 Saskatchewan

Maternity Leave

Part IV of the Labour Standards Act provides for maternity leaveprovisions (ss. 23 to 29, ¶85,123 to 85,129). An employee shall be grantedsuch leave if she is currently employed and has been employed at least 20weeks in the 52 weeks immediately preceding the day leave is to begin,submits an application in writing at least four weeks before the day shewishes to begin the maternity leave, and provides a certificate from aqualified medical practitioner certifying that she is pregnant and givingthe estimated date of birth (s. 23(1), ¶85,123). It is important to note thatif a business is sold, transferred, leased or otherwise disposed of, theaffected employees are considered to have had continuous employment.As such, entitlement to maternity leave is based upon an employee’slength of service with the business, not with the current owner (s. 83,¶85,183).

If these requirements are met, the employee is entitled to a maternityleave not exceeding 18 weeks, beginning at any time in the 12 weeksimmediately before the estimated date of birth (s. 23(3), ¶85,123). Even ifthe employee has failed to give the required written notice, she is entitledto the leave if she provides a certificate from a qualified medical practi-tioner certifying either of the following:

¶10,075



(a) that the employee is pregnant, the estimated date of birth andthat there are bona fide medical reasons that require her to cease workimmediately; or

(b) that the employee was pregnant and that the pregnancy termi-nated due to a miscarriage or stillbirth, on a specified date not more than14 days prior to the date of the certificate (s. 23(2), ¶85,123).

If an employee does not apply for leave within the specified time andthere are no medical grounds for an earlier leave, she is entitled only to 14weeks leave beginning at any time during the eight weeks immediatelybefore the estimated date of birth (ss. 23(4) and (5), ¶85,123).

Notwithstanding the varying provisions of the foregoing, if the actualdate of birth is later than the estimated date of birth, the employee isentitled to not less than six weeks leave after the actual date of birth. Ifthere is mutual employer-employee agreement, an employee may beginher work earlier than six weeks after the date of the birth (ss. 23(6) and(7), ¶85,123).

If an employee is not able to return to work because of medicalreasons after her leave has expired and she has a medical certificate tothat effect, her employer must grant her a further period of leave, not toexceed six weeks, that she may request (s. 24, ¶85,124).

An employer may, if there is no opportunity to modify job duties orreassign the employee to another job without loss of wages or benefits,require the employee to begin maternity leave not more than 13 weeksbefore the estimated date of birth if the pregnancy of the employee unrea-sonably interferes with the performance of her work, and in any prosecu-tion the onus is on the employer to prove that such is the case (s. 25,¶85,125).

When the leave expires, the employee must be reinstated in theposition she occupied before the leave, or in a comparable position, withnot less than the same wages and with no loss of accrued seniority orbenefits (s. 26(1), ¶85,126). Maternity leave does not constitute a break inemployment for the purposes of seniority and recall rights and thereforeseniority and rights of recall continue to accrue during maternity leave(s. 26(2), ¶85,126).

While on maternity leave, the employee is entitled to continue partici-pating in any benefit plan the employer is required to provide if theemployee pays contributions required by the plan. Employers have untilFebruary 3, 1998, to ensure that benefit plans permit the employee tocontinue to participate in the plan while on maternity leave (ss. 26(3)and(4), ¶85,126). The types of benefit plans that an employee is entitled tocontinue participating in while on maternity, parental or adoption leave

¶10,075



are set out in the regulations and are as follows: medical, dental, disabilityor life insurance, registered retirement savings (RRSP), pension, acci-dental death or dismemberment and anything similar to the above.

No employer shall dismiss, lay off, suspend, or otherwise discriminateagainst an employee because she is: (a) pregnant; (b) temporarily dis-abled because of pregnancy; or (c) has applied for maternity leave. A judgemay order the employer to comply with the provisions of the Act (s. 27,¶85,127).

An employee who intends to resume employment after maternityleave must give her employer at least four weeks’ notice of her intention todo so. The employer is not required to permit her to return to work untilshe has complied with the notice provisions (s. 28, ¶85,128).

The maternity leave provisions of the Act (s. 4, ¶85,104) do not applyto persons engaged primarily in farming, ranching, or market gardening(egg hatcheries, greenhouses, nurseries, and bush clearing or commercialhog operations are not included in this definition).

Parental Leave

Part IV.1 of the Labour Standards Act sets out the parental leaveprovisions (s. 29.1, ¶85,129a). An employer shall grant such leave if theemployee is currently employed and has been employed at least 20 weeksin the 52 weeks immediately preceding the day leave is to begin andsubmits an application in writing at least four weeks before the day theleave is to begin. In the case of an employee on maternity leave, the noticeof intention to take parental leave must be submitted at least four weeksprior to the date the employee was scheduled to return to work and that isthe date on which the parental leave begins.

If these requirements are met, the employee is entitled to parentalleave of not more than 34 consecutive weeks, if the employee takes mater-nity or adoption leave, and not more than 37 weeks if the employee doesnot take maternity or adoption leave. Parental leave is to be taken duringthe period commencing 12 weeks before the estimated date of birth orestimated date the child comes into the employee’s care and 52 weeksfollowing the date of birth or the actual date the child comes into theemployee’s care (s. 29.1(2), ¶85,129a). Even if the employee has failed togive the required written notice, the employee is entitled to parental leavebeginning on a date within three weeks after the birth of the child or theday the child comes into the employee’s care (s. 29.1(3), ¶85,129a).

Transitional provisions allow employees whose child was born oradopted on or after December 31, 2000, and who were on maternity,adoption, or parental leave on June 14, 2001, the date that amendmentsextending parental leave in the Act became effective, to be eligible to

¶10,075



extend their leave to the above maximums. The period of extended leaveto which an employee is entitled is:

● not more than 34 consecutive weeks if the employee is takingmaternity or adoption leave;

● not more than 34 consecutive weeks less the total of any parentalleave taken if the employee takes parental leave as well as mater-nity or adoption leave;

● not more than 37 consecutive weeks if the employee’s spouse istaking maternity or adoption leave; and

● not more than 37 consecutive weeks less the total of any parentalleave taken if the employee takes parental leave and is not entitledto maternity or adoption leave.

The employee must give the employer written notice of his or her inten-tion to take the extended leave as soon as possible before the end of his orher maternity, adoption, or parental leave. The extended leave cannot endlater than 52 weeks following the actual date of birth or the day in whichthe child comes into the employee’s care. The extended leave must also betaken consecutively with any maternity, adoption, or parental leave taken.

It is important to note that if a business is sold, transferred, leased orotherwise disposed of, the affected employees are considered to have hadcontinuous employment. As such, entitlement to parental leave is basedupon an employee’s length of service with the business, not with thecurrent owner (s. 83, ¶85,183).

The provisions regarding continuation of seniority and benefits, rein-statement on expiration of the leave, prohibitions against discipline ordismissal because of leave and the required notice of intention to resumeemployment are the same as those covering maternity leave outlinedabove.

The parental leave provisions of the Act (s. 4, ¶85,104) do not applyto persons engaged primarily in farming, ranching, or market gardening(egg hatcheries, greenhouses, nurseries, and bush clearing or commercialhog operations are not included in this definition).

(CCH ¶6091; 6092)

¶10,080 N.W.T./Nunavut

Note: On April 1, 1999, the new territory of Nunavut came into being.The Federal legislation creating the new territory has declared that North-west Territories legislation will apply to Nunavut until the new territorypasses its own legislation. For the purposes of this commentary, Nunavut

¶10,080



and Northwest Territories law should be presumed to be the same, exceptwhere otherwise stated.

Pregnancy Leave

The Labour Standards Act provides that a pregnant employee isentitled to pregnancy leave without pay if she has worked for her employerfor a period prescribed by regulation, submits an application in writing atleast four weeks before the date leave is to begin and provides, whenrequested, a certificate signed by a qualified medical practitioner or,where a medical practitioner is unavailable, a registered nurse, a nursepractitioner, or a temporary nursing certificate holder, stating that theemployee is pregnant and giving the estimated date of birth (ss. 30 and 31,¶95,610 and ¶95,631). The Pregnancy and Parental Leave Regulationsprovide that in order to qualify for maternity leave an employee must haveworked for her employer for at least 12 consecutive months (s. 2,¶95,782).

Where the above requirements are met, the Labour Standards Actprovides that the employee is entitled to a pregnancy leave not exceeding17 weeks beginning at any time in the 17 weeks immediately before theestimated date of birth. Even if the employee has failed to give the writtennotice, she is entitled to the leave where, due to a medical conditionarising from the pregnancy, she was unable to give the required notice andwithin two weeks of ceasing work, she provides the employer with amedical certificate signed by a qualified medical practitioner or registerednurse where no medical practitioner is available, certifying the medicalcondition arising from the pregnancy and giving the estimated date ofbirth (s. 32, ¶95,632).

Notwithstanding the above, if the actual date of delivery is later theestimated date of birth, the employee is entitled to extend the pregnancyleave for the period of the discrepancy, to a maximum of six weeks(s. 31(3), ¶95,631).

Where the employee and the employer agree, an employee who hasrequested pregnancy leave may resume employment before the end of thatperiod (s. 31, ¶95,631).

If an employee does not request pregnancy leave in the manner setout above and the employee provides the employer with a medical certifi-cate stating that the employee has given birth on a specified day, theemployee is entitled to a pregnancy leave of six consecutive weeks(s. 32(2), ¶95,632).

A Labour Standards Officer may, at the request of the employer,require an employee to begin pregnancy leave, where, in the opinion of theOfficer, the duties of the employee cannot reasonably be performed

¶10,080



because of the pregnancy. Pregnancy leave so required shall continue untilthe officer is satisfied the employee can perform her duties, or the preg-nancy is terminated. Before a Labour Standards Officer can require anemployee to begin taking pregnancy leave, the officer must consider: (a)the nature of the industrial establishment; (b) the conditions of employ-ment at the industrial establishment; (c) the welfare of the employees;and (d) any medical information provided, with the employee’s consent, tothe office (s. 33, ¶95,633).

When the leave expires, the employee shall be reinstated in the posi-tion she occupied at the commencement of the leave or in a comparableposition, with not less than the wages, benefits and seniority that hadaccrued at the start of the leave and with all wages and benefit incrementsshe would have been entitled had the leave not been taken (s. 35,¶95,635). Where operations that were suspended during and after theexpiration of the maternity leave are later resumed, the employer mustcomply with the reinstatement provisions (s. 36, ¶95,636).

No employer shall terminate, or otherwise change a condition ofemployment without the employee’s written consent, because she is preg-nant or has applied for, is on, or has taken pregnancy leave unless theemployee is absent for a period exceeding the leave she is entitled to(s. 38, ¶95,638). The onus is on the employer to establish that terminationor change in conditions of employment was not the result of theemployee’s pregnancy or application for leave (s. 39, ¶95,639). Where theLabour Standards Officer is satisfied that an employer has contravenedthese provisions, the Officer may order the employer to comply with theprovisions, reinstate the employee, or compensate the employee with anywages or benefits lost in relation thereto (s. 67.1(2), ¶96,667a).

Parental Leave

Every employee who has been employed by an employer for at least12 consecutive months and who becomes the natural or adoptive parent ofa child or children, is entitled to an unpaid leave of absence of up to37 weeks (s. 34, ¶95,634). The Pregnancy and Parental Leave Regulationprovides that this entitlement extends only to employees who have beenemployed with the employer for a period of 12 consecutive months (s. 3,¶95,783). Entitlement to parental leave is in addition to pregnancy leaveand is available to both parents. An employee who intends to take parentalleave must give the employer a written request for leave at least fourweeks prior to the date on which the leave is to begin (s. 34, ¶95,634).

Where an employee takes parental leave in addition to pregnancyleave, parental leave must begin immediately on the expiry of the preg-nancy leave or on the day the child arrives in the employee’s home unlessthe employee and the employer agree otherwise (s. 34(6), ¶95,634). In all

¶10,080



other cases, parental leave must be taken within one year following thebirth or arrival of the child in the employee’s home (s. 34(4), ¶95,634).

The maximum period of combined pregnancy and parental leave is 52weeks (s. 35.1, ¶95,635a).

Even if the employee has failed to give the required written notice,the employee is entitled to full parental leave where the child theemployee is adopting arrives at the employee’s home sooner thanexpected and the employee requests the leave. An employee who does notproperly request parental leave is still entitled to parental leave of sixconsecutive weeks (s. 35(2), ¶95,635). Where the employee and theemployer agree, an employee may resume employment before the end ofthe parental leave (s. 34(7), ¶95,634).

The provisions relating to reinstatement on expiry of leave, mainte-nance of benefits and the prohibitions against discharge or changes inconditions of employment are the same as those concerning pregnancyleave, above.

(CCH ¶6101; 6102)

¶10,085 Yukon Territory

Maternity Leave

The Employment Standards Act (R.S.Y. 1986, c. 54) provides thatpregnant employees who have completed 12 months of continuous servicewith their employer are entitled to maternity leave without pay. Theemployee must submit an application in writing at least four weeks beforethe date leave is to begin and provide a certificate signed by a qualifiedmedical practitioner stating that the employee is pregnant and giving theestimated date of birth (s. 36(1), ¶97,136).

When determining whether an employee has completed 12 months ofemployment for the purposes of applying these provisions, it should betaken into account that where an employer’s business has been sold,leased, merged or otherwise transferred to another employer,theemployee’s employment is deemed to be continuous despite the transfer(s. 26, ¶97,126).

Where these requirements are met, the employee is entitled to andthe employer must give the employee a leave of absence consisting of 17weeks or such shorter time as requested by the employee and agreed to bythe employer (s. 36(2), ¶97,136). Upon four weeks notice in writing of theday the employee intends to return to work or with the consent of theemployer, an employee may return to work before the period of absence isover (s. 36(3), ¶97,136).

¶10,085



Where the employee gives birth, the pregnancy is terminated, or theemployee needs leave due to a medical condition arising from the preg-nancy before a request for leave is made, the employer shall, upon receiptof a medical certificate and the employee’s request, grant the employee aleave of absence for a period of 17 consecutive weeks (s. 36(4), ¶97,136).An employee who requires leave because of a medical condition associatedwith the pregnancy cannot be required to return to work prior to six weeksafter the date of birth or the termination of the pregnancy (s. 36(5),¶97,136). The employer may require the employee to take maternityleave: (a) at any time, with the consent of the Director of EmploymentStandards, where the pregnancy interferes with the performance of theemployee’s duties; and (b) at any time during the six weeks immediatelypreceding the probable date of birth (s. 37, ¶97,137).

The services of an employee on maternity leave are deemed to becontinuous for the purpose of the Act (s. 40, ¶97,140). When the mater-nity leave expires, the employee must be reinstated to her previous posi-tion or to a comparable position with all wages and benefits she wouldhave been entitled to had the leave not been taken, as well as all of theincreases to wages and benefits to which she would have been entitled hadshe not taken maternity leave. Where the employer suspended or discon-tinued operations during the leave and has not resumed operations on theexpiry of the leave, the reinstatement requirements apply on resumptionof operations, subject to seniority provisions in a collective agreement(s. 41, ¶97,141).

The Act prohibits the employer from terminating an employee oraltering her conditions of employment without her consent by reason ofpregnancy unless the employee’s absence exceeds the permitted duration(s. 42, ¶97,142). The Director of Employment Standards is given broadpowers to make remedial orders when violations of the maternity leaveprovisions occur (s. 43, ¶97,143).

Parental Leave

Every employee who has been employed by an employer for at least12 consecutive months and who becomes the natural or adoptive parent ofa child or children is entitled to an unpaid leave of absence of up to 37weeks. The maximum period of combined pregnancy and parental leave is54 weeks. An employee who intends to take parental leave must give theemployer a written request for leave at least four weeks prior to the dateon which the leave is to begin (s. 38(1), ¶97,138). Even if the employeehas failed to give the required written notice, the employee is entitled tofull parental leave where the child comes into his or her custody and carefor the first time before the employee had been able to give the employerfour weeks written notice (s. 38(2), ¶97,138).

¶10,085



Where an employee takes parental leave in addition to pregnancyleave, parental leave must begin immediately on the expiry of the preg-nancy leave without a return to work unless the employee and theemployer agree otherwise (s. 39(1), ¶97,139). In all other cases parentalleave must be taken within one year following the birth, adoption or datethe child comes into the care and custody of the employee (s. 38(3),¶97,138). Upon four weeks notice in writing of the day the employeeintends to return to work or with the consent of the employer, anemployee may return to work before the period of absence is over(s. 38(5), ¶97,138).

Entitlement to parental leave is in addition to pregnancy leave and isavailable to both parents. Parental leave may be taken totally by oneparent or shared by both parents. If shared, the parental leave cannot betaken by both parents at the same time and the cumulative total parentalleave taken by both parents cannot exceed a total of 37 weeks. So if oneparent took 20 weeks’ leave, the other parent would be entitled to take 17weeks’ leave (s. 38(6), ¶97,138). However, in cases where the first parenton leave can not reasonably be expected to care for the child by him orherself due to illness, injury, death or other hardship in the family, bothparents may take leave at the same time (s. 38(7), ¶97,138).

The provisions relating to reinstatement on expiry of leave, mainte-nance of benefits and the prohibitions against discharge or changes inconditions of employment are the same as those covering maternity leave(see above).

(CCH ¶6111; 6112)

¶10,100 Paternity Leave¶10,150 Quebec

See the Family Care Leave provision located at ¶10,510.

¶10,200 Adoption Leave (Where Different from ParentalLeave)


An employee who has been employed by the same employer for20 consecutive weeks and is the parent of a child is entitled to a 17-weekleave of absence without pay following the child’s coming into the careand custody of the parent for the first time (s. 43(1), ¶51,303; s. 43.2,¶51,303b). It is important to note that when a business is sold, transferredor assigned to another employer, any employees who remain employed areconsidered to have had continuous employment. As such, entitlement to

¶10,230



adoption leave is based upon the length of time an employee has workedfor the business, not for the current owner (s. 6, ¶51,266).

An employee is required to provide his or her employer with at least2 weeks’ written notice of the date the leave is to begin unless the parenthas to stop working because the child comes into his or her care andcustody for the first time sooner than expected. If this situation occurs,the adoption leave of the employee begins on the day he or she stopsworking. Within two weeks after stopping work, the employee must notifythe employer in writing that he or she wishes to take adoption leave(s. 43(2), ¶51,303; s. 43.1, ¶51,303a).

If an employee does not wish to take the full 17 weeks of adoptionleave, he or she must notify his or her employer, in writing, at least fourweeks before the anticipated date of return to work (s. 43.2, ¶51,303b).

An employee who has given notice to begin adoption leave maychange the notice to an earlier date by giving the employer two weeks’written notice prior to the earlier date or to a later date by giving theemployer two weeks’ written notice before the date on which the leavewas to begin. An employee who has given notice to end adoption leavemay change the notice to an earlier date by giving the employer fourweeks’ written notice before the earlier date or to a later date by giving theemployer four weeks’ written notice before the date on which the leavewas to end (s. 43.6, ¶51,303f).

Once adoption leave is completed the employee must be with thesame or comparable wage, duties, benefits and position as he or she heldbefore the leave commenced (s. 43.7, ¶51,303g). Unless there is a mutualemployer-employee agreement, the period of adoption leave does notcount towards the accumulation of rights, benefits and privileges. How-ever, for the purposes of the Act, the continuity of employment is deemednot to have been broken by the absence. (s. 43.7, ¶51,303g).

An employer may not dismiss or give notice of dismissal to anemployee for the reason only that (a) he or she informs the employer thathe or she intends to take adoption leave or (b) he or she is absent byreason of adoption leave as permitted by the Act. Where an employee isdismissed for either of these reasons, the onus of proving that the dis-missal was unrelated to adoption leave rests with the employer (s. 43.9,¶51,303i).

¶10,230



¶10,250 Quebec

See the Family Care Leave provisions located at ¶10,510.


Part IV.1 of the Labour Standards Act sets out the adoption leaveprovisions (s. 29.2, ¶85,129b). An employer shall grant such leave if theemployee is currently employed and has been employed at least 20 weeksin the 52 weeks immediately preceding the day leave is to begin, submitsan application in writing at least four weeks before the day the leave is tobegin. and is to be the primary caregiver of the adopted child during theperiod of leave.

If these requirements are met, the employee is entitled to parentalleave of not more than 18 weeks beginning on the day the child becomesavailable for adoption (s. 29.2(2), ¶85,129b). If the employee is unable togive the required written notice, the employee must give the employer thesame notice that was given to the adoptive parents by the Department ofCommunity Resources and Employment, the adoption agency or the birthparents, as the case may be (s. 29.2(3), ¶85,129b).

The provisions regarding continuation of seniority and benefits, rein-statement on expiration of the leave, prohibitions against discipline ordismissal because of leave and the required notice of intention to resumeemployment are the same as those covering maternity leave outlinedabove.

The adoption leave provisions of the Act (s. 4, ¶85,104) do not applyto persons engaged primarily in farming, ranching, or market gardening(egg hatcheries, greenhouses, nurseries, and bush clearing or commercialhog operations are not included in this definition).

(CCH ¶6093)

¶10,300 Bereavement Leave¶10,305 Federal

The Canada Labour Code, which applies to employment in federallyregulated undertakings such as banks, airlines, railways, and broadcastingcompanies, provides for bereavement leave. If a member of an employee’simmediate family dies, the employee is entitled to bereavement leave onany of his normal working days that occur during the three days immedi-ately after the day of death (s. 210, ¶9863).

Immediate family is defined as including the employee’s:

● spouse or common-law partner;

¶10,305



● parents and the spouse or common-law partner of the parent;

● children and the children of the employee’s spouse or common-lawpartner;

● grandchildren;

● sisters and brothers;

● grandparents;

● mother-in-law and father-in-law and the spouse or common-lawpartner of the in-law; and

● any relative permanently residing in the employee’s household orwith whom the employee resides (Reg. s. 33, ¶10,274).

A ‘‘common-law partner’’ is defined in the Canada Labour Standards Reg-ulation as a person who has been cohabiting with an individual in aconjugal relationship for at least one year. Therefore, a common-lawpartner includes a same-sex partner.

If the employee has completed three consecutive months of contin-uous employment with the employer, the employee is entitled to bereave-ment leave with pay at the regular rate of wages for the normal hours ofwork, and such pay is, for all purposes, deemed to be wages (s. 210(2),¶9863).

For the purpose of determining whether an employee has completedthree consecutive months of continuous employment, if any federal work,undertaking or business is transferred from one employer to another, anemployee’s employment is considered to be continuous (s. 210(4),¶9863).

(CCH ¶5993)

¶10,315 British Columbia

An employee is entitled to up to three days of unpaid leave on thedeath of a member of the employee’s immediate family (s. 53, ¶39,333).An employee’s immediate family includes his or her spouse, child, parent,guardian, sibling, grandchild or grandparent, as well as any person wholives with the employee as a member of the employee’s family (s. 1,¶39,281).


(CCH ¶6014)

¶10,315




The Employment Standards Act provides for up to five days’ unpaidleave on the death of a person in a close family relationship with theemployee, to be taken during the period of bereavement and to begin notlater than the day of the funeral or memorial service (s. 44.03, ¶46,644c).


Upon completion of 30 days continuous service with the sameemployer, an employee is entitled to a period of bereavement leave con-sisting of one day’s paid leave and two days’ unpaid leave in the event ofthe death of a spouse, child, mother, father, brother or sister, grandparent,grandchild, mother- or father-in-law, brother- or sister-in-law, ordaughter- or son-in-law (s. 43.10(1), ¶51,303j). An employee’s wagesduring their one day paid bereavement leave shall be calculated by multi-plying the employee’s normal hourly rate of pay by the average number ofhours worked per day in the three weeks immediately preceding thebereavement leave (s. 43.10(2), ¶51,303j). An employee who is not enti-tled to bereavement leave shall be given two days unpaid leave in theevent of the death of one of the relatives set out above (s. 43.10(3),¶51,303j). If the entitlement to the paid day of bereavement leave occursduring an employee’s regular vacation leave, the vacation leave shall beextended by one day (s. 43.10(4), ¶51,303j).

It is important to note that when a business is sold, transferred orassigned to another employer, any employees who remain employed areconsidered to have had continuous employment. As such, entitlement tobereavement leave is based upon the length of time an employee hasworked for the business, not for the current owner (s. 6, ¶51,266).

(CCH ¶6044)


The Labour Standards Code provides that an employee may beabsent from work, without pay, for up to three consecutive working dayson the death of the employee’s spouse, parent, guardian, child or ward.The employee may also take unpaid bereavement leave of one working dayon the death of the employee’s grandparent, grandchild, sister, brother,mother-in-law, father-in-law, son-in-law, daughter-in-law, sister-in-law orbrother-in-law (s. 60A, ¶55,460a). On such occasions, the employee mustadvise the employer of his or her absence as soon as possible (s. 60C,¶55,460c).

(CCH ¶6053)

¶10,335



¶10,340 Ontario

See Family Responsibility/Emergency Leave located at ¶10,508


The Employment Standards Act allows an employee up to threeconsecutive calendar days, without pay, on the death of a member of theemployee’s immediate family (including spouse, common-law spouse,child, parent, brother or sister) to be taken during the period of bereave-ment and to begin no later than the day of the funeral. An employee mustadvise the employer of their intention to take the leave, the anticipatedcommencement date and duration of the leave (s. 23, ¶72,723).

(CCH ¶6073)

¶10,350 Quebec

See the Family Care Leave provisions located at ¶10,510


The Labour Standards Act provides that an employee who, afterthree continuous months of employment with an employer, experiencesthe death of a member of the employee’s immediate family, is entitled to aleave of up to five working days without pay and without dismissal ordiscipline (s. 29.3, ¶85,129c). Immediate family is defined as spouse,parent, grand-parent, child, sister, or brother of an employee or theemployee’s spouse. Spouse includes common-law spouse and is defined asthe wife or husband of an employee or a person with whom the employeecohabits as a spouse continuously for a period of at least two years or in arelationship of some permanence if they are the parents of a child. Theleave must be taken within one week before and ending one week after thefuneral.

It is important to note that if a business is sold, transferred, leased orotherwise disposed of, the affected employees are considered to have hadcontinuous employment. As such, entitlement to bereavement leave isbased upon an employee’s length of service with the business, not with thecurrent owner (s. 83, ¶85,183).

The bereavement leave provisions of the Act (s. 4, ¶85,104) do notapply to persons engaged primarily in farming, ranching, or market gar-dening (egg hatcheries, greenhouses, nurseries, and bush clearing or com-mercial hog operations are not included in this definition).

(CCH ¶6094)

¶10,355




The Employment Standards Act provides that in the event of thedeath of a member of the immediate family, an employee is entitled tobereavement leave without pay for up to one week provided that thefuneral of the deceased falls within that week. As well, if an employee isdesignated by the family of a deceased member of a First Nation as theperson responsible for organizing the funeral potlatch for the deceased,the employee is entitled to bereavement leave. ‘‘Immediate family’’ meansa spouse, parent, child, sister, brother, mother and father of a spouse, stepmother and father, grandparent, grandchild, son and daughter-in-law andany relative permanently residing with the employee. ‘‘Spouse’’ means theperson who, at the date in question, cohabited with the employee and (a)to whom the employee is legally married, or (b) with whom the employeecohabited as a couple for at least 12 months immediately before the date inquestion (s. 60, ¶97,160).

(CCH ¶6113)

¶10,400 Sick Leave¶10,405 Federal

The Canada Labour Code, provides for sick leave. An employer shallnot dismiss or lay off an employee solely because of absence due to illnessor injury if (a) the employee has completed three consecutive months ofcontinuous employment with the employer; (b) the period of absence doesnot exceed 12 weeks, and (c) the employee, if requested in writing by theemployer within 15 days after returning to work, furnishes a doctor’scertificate confirming that the absence was legitimate (s. 239, ¶9892).

If the above conditions are met, the employment of a person who hastaken sick leave is deemed to be continuous for the purpose of calculatingpension and other employee benefits and to that end an employer isrequired to continue the payment of contributions toward employee ben-efit schemes while the employee is on sick leave. If the employee fails topay any employee contributions required by the scheme, the employer’sobligation ceases (s. 239, ¶9892).

For the purpose of determining whether an employee has completedthree consecutive months of continuous employment, if any federal work,undertaking or business is transferred from one employer to another, anemployee’s employment is considered to be continuous (s. 239(5),¶9892).

No employer shall dismiss, suspend, layoff, demote or discipline anemployee because of absence from work due to work-related illness orinjury. All employers are required to have a wage replacement plan that

¶10,405



provides wage replacement at a rate equivalent to the workers’ compensa-tion payable in the employee’s province of residence. The employer must,where reasonably practicable, return an employee to work after anabsence due to a work-related illness or injury and may, where theemployer is unable to perform all of the previous job functions, reassignthe employee to a different position (s. 239.1, ¶9893).

The employment of a person who is absent as a result of awork-related illness or injury is deemed to be continuous for the purposeof calculating pension and other employee benefits and to that end anemployer is required to continue the payment of contributions towardemployee benefit schemes while the employee is on sick leave. If theemployee fails to pay any employee contributions required by the scheme,the employer’s obligation ceases (s. 239.1, ¶9893).

(CCH ¶5994)


An employer must allow an employee, who has been with theemployer for more than 90 days, up to five days’ unpaid leave of absencefor sick leave every year, upon the request of the employee (s. 44.021(1),¶46,644u). If the request for a leave of absence is for four or more consec-utive days, the employer may require the employee to provide theemployer with a medical certificate certifying that the employee is inca-pable of working because of illness or injury (s. 44.021(2), ¶46,644u). Anemployee requesting a leave of absence for sick leave must advise theemployer of the anticipated duration of the leave (s. 44.021(3), ¶46,644u)

(CCH ¶6035)


Upon completion of 30 days of continuous service with the sameemployer, an employee is entitled to a period of seven days’ unpaid sickleave or family responsibility leave in one year (s. 43.11(1), ¶51,303k). Ifan employee takes three or more consecutive days of sick leave, theemployee is required to give his or her employer a certificate of a qualifiedmedical practitioner. If an employee takes three or more consecutive daysof family responsibility leave, he or she is required to provide the employerwith a statement in writing of the nature of the family responsibility(s. 43.11(2)-(3), ¶51,303k). Any unused sick leave or family responsibilityleave days will expire at the end of each year (s. 43.11(4), ¶51,303k).

It is important to note that when a business is sold, transferred orassigned to another employer, any employees who remain employed areconsidered to have had continuous employment. As such, entitlement to

¶10,430



sick leave is based upon the length of time an employee has worked for thebusiness, not for the current owner (s. 6, ¶51,266).

(CCH ¶6045)


An employee is entitled, under the Labour Standards Code, to amaximum of three days of unpaid sick leave each year. This leave may betaken by the employee to deal with a sick child, parent or family member.An employee may also take sick leave in order to attend medical, dental orother similar appointments during working hours (s. 60G, ¶55,460g).

(CCH ¶6055)

¶10,440 Ontario

See Family Responsibility/Emergency Leave located at ¶10,508


According to the Employment Standards Act, an employee who hasworked for his or her employer continuously for six months or longer maybe granted up to three days of unpaid sick leave in a 12-month period,upon request. The employer may require the employee requesting theleave to provide a medical certification certifying that the employee isunable to work due to illness or injury (s. 22.2, ¶72,722b).

(CCH ¶6075)

¶10,450 Quebec

The Act respecting Labour Standards prohibits employers or theiragents from dismissing, suspending, or transferring an employee who hasthree months of uninterrupted service on the ground that the employeewas absent because of illness or accident for a period not exceeding 26weeks in the preceding 12 months. These sick leave provisions do notapply to employees who have experienced an industrial accident or occu-pational disease. (s. 79.1, ¶81,009a).

An employee must notify the employer as soon as possible of anabsence from work and give reasons for the absence (s. 79.2, ¶81,009b).

The employee’s participation in the group insurance and pensionplans at work will not be affected by the absence from work, subject toregular payment of contributions under the plans (s. 79.3, ¶81,009c).

At the end of the absence, the employee must be reinstated to his orher former position with the same benefits, including the wage theemployee would have been entitled to had he or she remained at work. If

¶10,450



the job no longer exists when the employee returns, he or she must beextended whatever rights or privileges to which the employee would havebeen entitled had the leave not been taken. However, employees may bedismissed, suspended or transferred if, in the circumstances, the conse-quences of the illness or accident, or the repetitive nature of the absences,constitute good and sufficient cause (s. 79.4, ¶81,009d). If the employermakes dismissals or layoffs that would have included the employee hadthe employee remained at work, the employee retains the samereturn-to-work rights as the employees who were dismissed or laid off(s. 79.5, ¶81,009e).

No employee under these sick leave provisions can be granted anybenefit to which the employee would not have been entitled if theemployee had remained at work (s. 79.6, ¶81,009f).

(CCH ¶6084)


Employers may not dismiss, suspend, lay off, demote, or disciplineemployees who have been in their service for at least thirteen consecutiveweeks, because of absence due to their own illness or injury, or that of amember of their immediate family who is dependent on them (s. 44.2,¶85,144b). ‘‘Immediate family’’ is defined to include spouses, parents,grandparents, children, and siblings. ‘‘Spouse’’ includes common-lawspouse.

Where the injury or illness is serious, employees are protected withrespect to absences of up to 12 weeks in a period of 52 weeks. Where theinjury or illness is not serious, employees are protected for absences of upto 12 days in a calendar year, unless it can be demonstrated that theemployee has a record of chronic absenteeism, and there is no reasonableexpectation of improved attendance. This may be extended up to 26 weekswhere the employee is receiving workers’ compensation benefits.

Employers may also not dismiss, suspend, lay off, demote or disci-pline an employee because he or she was absent, if during the period ofabsence he or she was receiving benefits or was waiting to receive com-passionate care benefits under the federal Employment Insurance Act. Ifthe employee is receiving federal compassionate care benefits, and theabove qualifications apply, the combined periods of absence must notexceed 16 weeks in a period of 52 weeks.

Employees must, if the employer makes a written request, provide acertificate from a qualified medical practitioner certifying that theemployee is incapable of working due to illness or injury, or certifying theillness or injury of the member of the employee’s immediate family.

¶10,455



For further information with respect to these provisions, please seethe commentary for Saskatchewan at ¶11,415 Unjust Dismissal — Statu-tory Remedies.

(CCH ¶6095; ¶6293)


The Employment Standards Act provides that an employee is enti-tled to one day without pay for every month employed by that employerminus the number of days on which the employee has previously beenabsent due to illness or injury. However, an employee’s maximum netentitlement at any time shall not exceed 12 days. An employer may requirethe certificate of a qualified medical practitioner to confirm entitlement.An employer shall not dismiss or lay off an employee solely because ofabsence due to illness or injury if the period of absence does not exceedthe employee’s entitlement (s. 59, ¶97,159).

(CCH ¶6114)

¶10,466 Compassionate Care Leave

¶10,467 Federal

The Canada Labour Code provides for up to eight unpaid weeks ofcompassionate care leave to care for or support a seriously ill familymember (s. 206.3, ¶9851b).

A ‘‘family member’’ is defined as:

● the employee’s spouse or common-law partner;

● the employee’s child or a child of the employee’s spouse orcommon-law partner;

● the employee’s parent, or a spouse or common-law partner of theparent; and

● any other person defined as a ‘‘family member’’ under the Employ-ment Insurance Regulations.

A ‘‘common-law partner’’ is defined as someone who has cohabitedwith the employee in a conjugal relationship for at least one year. It shouldbe noted that, under this definition of family member, a parent of theemployee’s spouse or common-law partner is not included. As a result,under the federal leave provisions, an employee will not be entitled tocompassionate care leave to provide care to the parent of his or herspouse or common-law partner.

¶10,467



To be eligible for compassionate care leave an employee must providea medical certificate stating that the eligible family member has a seriousmedical condition with a ‘‘significant risk of death within 26 weeks’’.

The leave must be taken in periods of not less than one week andends if the family member dies. The leave period with respect to a singlefamily member may be shared between different employees. However, theaggregate amount of leave shared among family members with respect tothe same ill family member cannot exceed eight weeks.

If requested in writing by the employer within 15 days after theemployee returns to work following the leave, the employee must providethe employer with a copy of the medical certificate.

No employer shall dismiss, suspend, layoff, demote or discipline anemployee because he or she has taken compassionate care leave and noemployer shall take into account the fact that an employee has takencompassionate care leave or intends to take compassionate care leavewhen making any decision to promote or train the employee (s. 209.3,¶9860).

(CCH ¶5996)

¶10,470 Manitoba

The Employment Standards Code provides employees, who havebeen employed by the same employer for at least 30 calendar days, withup to eight weeks’ unpaid compassionate care leave in order to providecare or support for a terminally ill family member (s. 59.2(2), ¶40,659b).

Family member is defined as the employee’s


● child or child of the spouse or common-law partner;

● parent or parent of the spouse or common-law partner; and

● any other person who is prescribed by regulation (s. 59.2(1),¶40,659b).

A ‘‘common-law partner’’ means the person who, not being married tothe other person, is cohabiting with him or her in a conjugal relationshipof some permanence (s. 59.2(1), ¶40,659b).

Employees are eligible for eight weeks of leave in a 26-week periodand must be reinstated at the end of the leave. If possible, the employeeshould provide notice of at least one pay period, that he or she requiresthe leave (s. 59.2(4), ¶40,659b). An employee who wishes to take compas-sionate care leave must, as soon as possible, provide a medical certificate

¶10,470



from the physician of the ill family member, verifying that there is asignificant risk of death within 26 weeks and that care or support isrequired (ss. 59.2(3) and 59.2(5), ¶40,659b). Unless otherwise agreed to,employees must provide 48 hours of notice if they return from their leaveearlier than initially established (s. 59.2(8), ¶40,659b). The period ofleave must be at least one week in duration (s. 59.2(7), ¶40,659b).

The provisions regarding reinstatement on expiration of leave, con-tinuous employment, and the prohibition against dismissal on the groundsof application for leave are the same as those with respect to maternityleave (see ¶10,040).

(CCH ¶6025)


Pursuant to amendments in force on January 4, 2004, the Employ-ment Standards Act will provide employees with up to eight unpaidweeks of compassionate care leave to care for or support a seriously illperson with whom the employee has a close family relationship(s. 44.024(2), ¶46,644bd).

To be eligible for compassionate care leave, a qualified medical prac-titioner must issue a certificate stating that the eligible family member hasa serious medical condition with a ‘‘significant risk of death within 26weeks’’ (s. 44.024(6), ¶46,644bd). If requested in writing by the employerwithin 15 days after the employee returns to work following the leave, theemployee must provide the employer with a copy of the medical certifi-cate (s. 44.024(6), ¶46,644bd).

An employee who intends to take compassionate care leave mustadvise the employer as soon as possible of his or her intention to take theleave, the anticipated commencement date of the leave, and the antici-pated duration of the leave (s. 44.024(7), ¶46,644bd).

The leave must be taken in periods of not less than one week(s. 44.024(4), ¶ 46,644bd) and ends if the family member dies(s. 44.024(3), ¶46,644bd). The leave period with respect to a single familymember may be shared between different employees. However, the aggre-gate amount of leave shared among family members with respect to thesame ill family member cannot exceed eight weeks (s. 44.024(5),¶46,644bd).

(CCH ¶6038)


For the purposes of the Compassionate Care Leave provisions of theLabour Standards Act, a ‘‘cohabiting partner’’ is either of two people who

¶10,472



have been cohabiting in a conjugal relationship, outside of marriage, fornot less than one year. A ‘‘family member’’ is defined as the employee’s:

● spouse or cohabiting partner;

● child or a child of the employee’s spouse or cohabiting partner;

● parent, or a spouse or common law partner of the parent; and

● any other person prescribed by the regulations (s. 43.13,¶51,303m).

The Labour Standards Act provides employees who have beenemployed by the same employer for at least 30 days with a leave ofabsence of up to eight weeks in order to provide care or support to afamily member of the employee, where a legally qualified medical practi-tioner has issued a certificate stating the family member has a seriousmedical condition with a significant risk of death within 26 weeks. The 26weeks can either be counted from the date the certificate is issued, or theday the leave begins, if the leave occurs before the certificate is issued(s. 43.14(1), ¶51,303n).

The period of leave runs from the week in which the certificate wasissued, or when the employee was first absent from work, until either theweek in which the family member dies, or after the expiry of 26 weeks. Inexceptional circumstances, the director may also provide an employeewith up to three additional days of unpaid leave immediately following theend of the week in which the family member died (s. 43.14(2)-(3),¶51,303n).

The leave of absence must be taken in periods of at least one week inlength (s. 43.14(6), ¶51,303n). While one period of leave may be splitbetween two or more employees with respect to the same family member,the aggregate amount of leave must not exceed eight weeks (s. 43.14(7),¶51,303n).

An employee intending to take compassionate care leave is requiredto provide written notice to his or her employer at least two weeks beforethe leave is to begin, providing the length of the leave, unless there is avalid reason why notice may not be given at that time. Any change to thelength of the leave should also be provided in writing to the employer atleast two weeks prior to any change. In addition, the employer may make awritten request, within 15 days of the employee’s return to work, that theemployee provide a copy of the medical practitioner’s certificate (s. 43.15,¶51,303o).

Once the compassionate care leave is completed, the employee mustbe reinstated to employment on terms and conditions that are not lessbeneficial than those that existed before the start of the leave (s. 43.16(3),

¶10,472



¶51,303p). Unless there is agreement between the employer and theemployee, the period of compassionate care leave does not count towardsthe application of rights, benefits and privileges, although the periodworked upon the employee’s return after the leave shall be considered, forthe purposes of the Act, to be continuous with the period worked beforethe leave (s. 43.16(4), ¶51,303p).

An employer may not dismiss or give notice of dismissal to anemployee who intends to take, applies for, or takes such a leave ofabsence. If an employee is dismissed for any of these reasons, the onus ofproving that the dismissal was unrelated to the compassionate care leaverests with the employer (s. 43.16(1)-(2), ¶51,303p).

(CCH ¶6046)


Pursuant to amendments that are expected to be in force on Jan-uary 4, 2004, The Labour Standards Code will provide employees, whohave been employed by the same employer for at least three months, withup to eight weeks’ unpaid compassionate care leave in order to providecare or support to a family member of the employee, if a legally qualifiedmedical practitioner issues a certificate stating that the family memberhas a serious medical condition with a significant risk of death within 26weeks (s. 60E(2), ¶55,460e). Where requested in writing by the employer,the employee must provide the employer with a copy of the medicalcertificate (s. 60E(5), ¶55,460e). An employee must advise an employeras soon as possible of any intention to take compassionate care leave(s. 60E(9), ¶55,460e).

Family member is defined as the employee’s


● child or child of the spouse or common-law partner;

● parent or parent of the spouse or common-law partner; and

● any other person who is prescribed by regulation (s. 60E(1),¶55,460e).

A ‘‘common-law partner’’ of an individual means another individualwho has cohabited with the individual in a conjugal relationship for atleast one year (s. 60E(1), ¶55,460e).

The period of leave must be at least one week in duration (s. 60E(4),¶55,460e) and ends when the family member dies (s. 60E(3), ¶55,460e).

For the period of the leave, the employee will have the option ofmaintaining his or her benefit plan. The employer must notify the

¶10,473



employee, in writing, of the option and of the date beyond which theoption can no longer be exercised, at least ten days before the option canbe exercised (s. 60E(6), ¶55,460e). Where the employee decides, inwriting, to maintain the benefit plan, the employee must enter into anarrangement with the employer to pay costs of maintaining the plan,including paying the employer’s share (s. 60E(7), ¶55,460e).

The provisions relating to the maintenance of benefits, reinstatementon expiry of leave, and the prohibitions against discharge, lay-off or dis-crimination are the same as those covering pregnancy leave (See above).

(CCH ¶6056)

¶10,475 Ontario

Amendments to the Employment Standards Act, 2000, which cameinto force on June 29, 2004, provide eight weeks of unpaid family medicalleave to employees who are required to provide care or support to criti-cally ill family members. Specified family members include:

● the employee’s spouse;

● the employee’s parent, step-parent or foster parent;

● a child, step-child or foster child of the employee or the employee’sspouse; or

● any other individual prescribed as a family member for the purposeof family medical leave (s. 49.1(3), ¶61,049a).

The definition of spouse includes either of two persons who aremarried to each other, or who live together in a conjugal relationshipoutside of marriage. As a result, the definition of spouse includescommon-law partners and same-sex marriages (s. 45, ¶61,045).

In order to qualify for family medical leave, an employee must obtaina certificate stating that the specified family member has a serious risk ofdeath occurring within a period of 26 weeks or less. The certificate mustbe issued by a qualified medical doctor, or another health practitioner asprescribed by regulation (s. 49.1(1)-(2), ¶61,049a). The employee shouldalso advise his or her employer in writing that he or she will be taking theleave. If the employee is required to begin the leave before advising theemployer, the employer must be advised, in writing, as soon as possibleafter the leave commences (s. 49.1(8)-(9), ¶61,049a).

The family medical leave may be taken for up to eight weeks, inperiods of entire weeks (s. 49.1(7), ¶61,049a). It may not begin soonerthan the first week of the 26-week period, and must end no later than theearlier of the last day of the week that the family member dies, and the

¶10,475



last day of the 26-week period (s. 49.1(4)-(5), ¶61,049a). If the employeetakes family medical leave, and the family member does not die during the26-week period, the employee may take another leave, which shall begoverned by the same requirements (s. 49.1(11), ¶61,049a).

More than one employee may take leave in order to care for the sameindividual. If this occurs, the total amount of time taken by all employeesmay not exceed eight weeks during the 26-week period (s. 49.1(6),¶61,049a).

(CCH ¶6064)


Pursuant to amendments that came in force on December 16, 2003,the Employment Standards Act provides employees with up to eightunpaid weeks of compassionate care leave to care for or support a seri-ously ill member of the employee’s immediate family (s. 22.3, ¶72,722c).‘‘Immediate family’’ means a spouse, common-law spouse, child, parent,brother or sister of the employee and anyone else prescribed by regula-tion.

To be eligible for compassionate care leave an employee must providea medical certificate, before or after taking the leave, stating that theeligible family member has a serious medical condition with a ‘‘significantrisk of death within 26 weeks’’.



These compassionate care leave provisions apply also to employeeswhose terms and conditions of work are established by a collective agree-ment under the Labour Act (s. 2(4), ¶72,702).

(CCH ¶6076)

¶10,476



¶10,477 Quebec

See the Family Care Leave provisions located at ¶10,510


See the Sick Leave provisions located at ¶10,455

¶10,480 Nunavut

Nunavut’s Labour Standards Act provides for up to eight unpaidweeks of compassionate care leave to care for or support a seriously illfamily member if a qualified medical practitioner issues a certificatestating that the eligible family member has a serious medical conditionwith a ‘‘significant risk of death within 26 weeks’’ (s. 39.1(2), ¶96,639a).

A ‘‘family member’’ is defined as:

● the employee’s spouse or common-law partner;

● the employee’s child or a child of the employee’s spouse orcommon-law partner;

● the employee’s parent, or a spouse or common-law partner of theparent; and

● any other person prescribed by the Labour Standards Act, theCanada Labour Code, or the Employment Insurance Act(s. 39.1(1), ¶96,639a).

A ‘‘common-law partner’’ of an individual means another individualwho has cohabited with the individual in a conjugal relationship for atleast one year (s. 39.1(1), ¶96,639a).

The period of leave must be at least one week in duration (s. 39.4,¶96,639d) and ends when the family member dies (s. 39.2(1), ¶96,639b).

The leave period with respect to a single family member may beshared between different employees. However, the aggregate amount ofleave shared among family members with respect to the same ill familymember cannot exceed eight weeks (s. 39.5, ¶96,639e).

If requested in writing by the employer within 15 days after theemployee returns to work following the leave, the employee must providethe employer with a copy of the medical certificate (s. 39.6, ¶96,639f).

No employer shall dismiss, suspend, layoff, demote or discipline anemployee because he or she has taken compassionate care leave and noemployer shall take into account the fact that an employee has takencompassionate care leave or intends to take compassionate care leavewhen making any decision to promote or train the employee (s. 39.7,

¶10,480



¶96,639g). Where the Labour Standards Officer is satisfied that anemployer has contravened this provision, the Officer may order theemployer to comply with the provision, reinstate the employee, or com-pensate the employee with any wages or benefits lost in relation thereto(s. 67.1(2), ¶96,667a).

(CCH ¶6104)

¶10,481 Yukon

The Employment Standards Act provides employees with up to eightunpaid weeks of compassionate care leave to care for or support a seri-ously ill member of the employee’s immediate family (s. 60.1, ¶97,160a).‘‘Immediate family’’ means a spouse, parent, child, sister, brother, motherand father of a spouse, step mother and father, grandparent, grandchild,son and daughter-in-law and any relative permanently residing with theemployee. ‘‘Spouse’’ means the person who, at the date in question, cohab-ited with the employee and (a) to whom the employee is legally married,or (b) with whom the employee cohabited as a couple for at least 12months immediately before the date in question (s. 60, ¶97,160)

To be eligible for compassionate care leave an employee must providea medical certificate stating that the eligible family member has a seriousmedical condition with a ‘‘significant risk of death within 26 weeks’’.



(CCH ¶6115)

¶10,490 Court LeaveSee also Jury Duty at ¶10,800


An employer must allow an employee an unpaid leave of absence forany period that the employee must be away from work as a result of beingsummoned or selected to serve on a jury or served with a summons toattend a court proceeding as a witness (s. 44.023(1), ¶46,644w). In suchcircumstances, the employer may require the employee to reimburse the

¶10,491



employer for any amount that the employee receives as a jury or witnessfee except for amounts received as compensation for travel, meal oraccommodation expenses (s. 44.023(2), ¶46,644w).

(CCH ¶6039)


The Labour Standards Code provides that an employee is entitled toan unpaid leave of absence for periods of time the employee is required toperform jury duty or is required by subpoena or summons to appear as awitness (s. 60A, ¶55,460a). On such occasions the employee must advisethe employer of his or her absence as soon as possible (s. 60C, ¶55,460c).

(CCH ¶6054)

¶10,500 Family Responsibility/Emergency Leave¶10,505 British Columbia

An employee is entitled to up to five days of unpaid leave during eachemployment year to meet responsibilities related to the care, health oreducation of a child in the employee’s care, or the care or health of anyother member of the employee’s immediate family (s. 52, ¶39,332).


(CCH ¶6013)


An employer must allow an employee up to three days’ unpaid leaveof absence every year to meet responsibilities related to the health, care oreducation of a person in a close family relationship with the employee(s. 44.022(1), ¶46,644v). The employee must advise the employer of theintention to take the leave, the anticipated commencement date of theleave, and the anticipated duration of the leave (s. 44.022, ¶46,644v).

(CCH ¶6037)

¶10,508 Ontario

Pursuant to Part XIV of the Employment Standards Act, 2000, anemployee who works for an employer who regularly employs at least 50workers is entitled to up to 10 days’ unpaid leave each calendar year in thecase of a personal illness, injury or medical emergency, and a death,illness, injury, medical emergency, or urgent matter concerning the fol-lowing:

¶10,508



● the employee’s spouse or same-sex partner;

● a parent, step-parent or foster parent of the employee, theemployee’s spouse or the employee’s same-sex partner;

● a child, step-child or foster child of the employee, the employee’sspouse or the employee’s same-sex partner;

● a grandparent, step-grandparent, grandchild or step-grandchild ofthe employee or of the employee’s spouse or same-sex partner;

● the spouse or same-sex partner of a child of the employee;

● the employee’s brother or sister; and

● a relative of the employee who is dependent on the employee forcare or assistance (ss. 50(1), (2), (5); ¶61,050)).

An employee who wishes to take emergency leave must notify theemployer that he or she will be doing so or, if the employee must begin theleave before advising the employer, as soon as possible after beginning it(ss. 50(3) and (4), ¶61,050). Any part of a day taken by an employee asemergency leave may be deemed by the employer to be one day’s leave(s. 50(6), ¶61,050). An employer may require an employee to provideevidence, reasonable in the circumstances, that the employee is entitled tothe leave (s. 50(7), ¶61,050).

Pursuant to the Exemptions, Special Rules and Establishment of Min-imum Wage Regulation, professionals such as health practitioners, archi-tects, lawyers, engineers, accountants, surveyors, veterinarians, teachers,and students in training for these professions are not entitled to emer-gency leave where to exercise the entitlement would constitute an act ofprofessional misconduct or a dereliction of a professional duty (Reg. s. 3).

The provisions regarding continuation of seniority, benefits, andvacation entitlement, reinstatement on the expiration of the leave, and theprohibitions against discipline or dismissal because of leave are the sameas those covering pregnancy leave (see ¶6061).

SARS-related Emergency Leave

Temporary measures were enacted on May 5, 2003 pursuant to theSARS Assistance and Recovery Strategy Act, retroactively effective toMarch 26, 2003, allowing Ontario employees, including police officers, totake an emergency leave, without pay, for reasons related to severe acuterespiratory syndrome (SARS) (s. 2, ¶61,502). The Lieutenant Governor inCouncil shall proclaim a day for which the period of eligibility for the leavewill end (s. 1, ¶61,501).

¶10,508



Entitlement to a SARS-related emergency leave is in addition to theregular emergency leave entitlement, discussed above (s. 4, ¶61,504). ASARS-related emergency leave can be taken for any day or part of a dayduring which an employee falls into one or more of the following catego-ries:

● The employee is unable to work because he or she is under indi-vidual medical investigation, supervision or treatment related toSARS.

● The employee is unable to work because he or she is acting inaccordance with a SARS-related order under sections 22 or 35 ofthe Health Protection and Promotion Act.

● The employee is unable to work because he or she is in quarantineor isolation or is subject to a control measure in accordance withSARS-related information or directions issued to the public, a partof the public, or one or more individuals, by the Commissioner ofPublic Security, a public health official, a physician or a nurse or byTelehealth Ontario, the Government of Ontario, the Government ofCanada, a municipal council or a board of health, whether throughprint, electronic, broadcast or other means.

● The employee is unable to work because of a direction given by hisor her employer in response to a concern of the employer that theemployee may expose other individuals in the workplace to SARS.

● The employee is unable to work because he or she is needed toprovide care or assistance to an individual referred to below,because of a SARS-related matter that concerns that individual(s. 6(1), ¶61,506).

The individuals to which an employee must be providing care, for thepurposes of entitlement to a SARS-related emergency leave, are the fol-lowing:

● The employee’s spouse (including either of two persons who aremarried to each other, or live together in a conjugal relationshipoutside of marriage).

● A parent, step-parent or foster parent of the employee or theemployee’s spouse.

● A child, step-child or foster child of the employee or the employee’sspouse.

● A grandparent, step-grandparent, grandchild or step-grandchild ofthe employee or of the employee’s spouse.

● The spouse of a child of the employee.

¶10,508



● The employee’s brother or sister.

● A relative of the employee who is dependent on the employee forcare or assistance (s. 6(5), ¶61,506).

An employee who is on a SARS-related leave must, within two days,contact a public health official or a physician to receive directions as towhether he or she should continue to be absent from work forSARS-related reasons and arrange to receive a written confirmation ofthose directions (s. 6(2), ¶61,506). If, on May 5, 2003, an employee isalready on a leave because of the SARS-related circumstances set outabove, the two-day period begins on May 6, 2003 (s. 6(3), ¶61,506). Theemployee is not entitled to continue on a SARS-related leave after thistwo-day period unless the continuation is in accordance with the direc-tions given by the public health official or physician (s. 6(4), ¶61,506).

An employee who takes a SARS-related leave must advise his or heremployer that he or she will be doing so (s. 6(7), ¶61,506). If theemployee must begin the leave before advising the employer, theemployee must advise the employer of the leave as soon as possible afterbeginning it (s. 6(8), ¶61,506). An employer may require an employeewho takes a SARS-related leave to provide evidence, reasonable in thecircumstances, that the employee is entitled to the leave (s. 6(9),¶61,506). However, the employee need not provide the evidence until hisor her SARS-related emergency leave has ended (s. 6(10), ¶61,506).

An employee who took a regular emergency leave during the periodbeginning March 26, 2003 and ending on May 5, 2003, and would havebeen entitled to take a SARS-related emergency leave, will be deemed tohave taken the SARS-related leave (s. 5, ¶61,505).

Any week in which an employee is absent for one or more daysbecause of a SARS-related leave is deemed to be an excluded week for thepurposes of layoff-period calculations, discussed in ¶11,335 and ¶11,715(s. 6(11), ¶61,506).

The provisions regarding continuation of seniority, benefits, andvacation entitlement, reinstatement on the expiration of the leave, and theprohibitions against discipline or dismissal in relation to the leave are thesame as those covering pregnancy leave (see ¶10,060) (ss. 7, ¶61,507and 8, ¶61,508). However, an employer retains the right to terminate anemployee’s employment because the employer’s business has beenadversely affected because of SARS and, as a result, the size of itsworkforce has been reduced so that the employee’s position was elimi-nated (s. 8(3), ¶61,508). These protections also apply to an employee whotook a leave during the period beginning March 26, 2003 and ending onMay 5, 2003 and would have been entitled to a SARS-related emergencyleave had the SARS-related emergency leave provisions been in force

¶10,508



when the leave was taken (s. 10, ¶61,510). In any proceeding related tothese employee protections, the burden of proof that an employer did notcontravene a relevant provision lies on the employer (ss. 9(3), ¶61,509and 10(3), ¶61,510). If an employment standards officer finds that anemployee was wrongfully terminated in violation of these employee pro-tections, the authority of the officer to order compensation is limited tocompensation for losses that arise from the failure of the employer, on thelater of May 5, 2003 and the day on which the employee was dismissed, toreinstate the employee (s. 11(6), ¶61,511).

(CCH ¶6063)


The Employment Standards Act provides that an employee may beabsent from work without pay for up to three days, during a 12-monthperiod, in order to meet responsibilities relating to the health or care of animmediate or extended family member. The employee must have workedfor the employer for six continuous months, or more, in order to qualify forthis leave. An employee is required to notify the employer of his or herintention to take the leave, when the leave will commence, and the dura-tion of the leave (s. 22.1, ¶72,722a). As set out in the Bereavement Leavesection above (¶10,345), section 1 of the Act defines ‘‘immediate family’’to include the employee’s spouse, common-law spouse, child, parent,brother or sister, while ‘‘extended family’’ includes a grandparent,grandchild, brother- or sister-in-law, mother- or father-in-law, or son- ordaughter-in-law of the employee (¶72,701).

(CCH ¶6074)

¶10,510 Quebec

The Labour Standards Act provides for a number of other leaves ofabsence collectively referred to as family or parental leave and absences.In order to clarify who is entitled to these various leaves, a definition ofspouse has been provided. A spouse is defined as either of two personswho (a) are married or in a civil union and cohabitating, (b) being ofopposite sex or the same sex, are living together in a de facto union andare the father and mother of the same child, or (c) are of the opposite sexor the same sex and have been living together in a de facto union for oneyear or more (s. 1(1), ¶80,931). Each of the various family/parental leaveand absences is discussed below.

Paternity Leave

The Labour Standards Act states than an employee may be absentfrom work for five days at the birth or adoption of his child or where there

¶10,510



is a termination of pregnancy in or after the twentieth week of pregnancy.Where the employee has 60 days of uninterrupted service, the first twodays of the leave are to be with pay. The leave may be broken intoseparate days at the request of the employee, but it may not be taken morethan 15 days after the child arrives at the employee’s residence or afterthe termination of pregnancy. The employee must advise his employer ofhis absence as soon as possible (s. 81.1, ¶81,011a).

In addition to the above-mentioned 5-day entitlement, commencingJanuary 1, 2006, an employee is entitled to paternity leave without pay forup to 5 weeks on the birth of his child. This leave must not begin beforethe week of the child’s birth and must not end later than 52 weeks afterthe birth (s. 81.2, ¶81,011b).

If the child is hospitalized during the paternity leave, the leave maybe suspended during the hospitalization, with agreement by the employer.In addition, if, before the expiry date of the leave, an employee sends theemployer notice accompanied by a medical certificate stating that thehealth of the child requires an extension, the employee is entitled to anextension for the duration indicated in the medical certificate (s. 81.14.2,¶81,011nb). Furthermore, at the request of the employee, paternity leavemay, in the cases where the child is hospitalized or where the employee isabsent due to illness or accident, be divided into weeks and be on condi-tions, for the duration, and within the time period prescribed by by-law(s. 81.14.1, ¶81,011na).

The employee’s participation in the group insurance and pensionplans at work will not be affected by the absence from work, subject toregular payment of contributions under the plans. Other advantages avail-able to employees on paternity leave may be set out by regulation(s. 81.15, ¶81,011o).

At the end of a paternity leave, the employee must be reinstated tohis former position, with the same benefits, including the wage he wouldhave been entitled to had the employee remained at work. If theemployee’s job no longer exists when he or she returns, the employeemust be extended whatever rights or privileges to which the employeewould have been entitled had he not taken the leave (s. 81.15.1,¶81,011oa).

Adoption Leave

The Labour Standards Act states than an employee may be absentfrom work for five days at the adoption of a child. Where the employee has60 days of uninterrupted service, the first two days of the leave are to bewith pay. The leave may be broken into separate days at the request of theemployee, but it may not be taken more than 15 days after the child

¶10,510



arrives at the employee’s residence. The employee must advise theemployer of his or her absence as soon as possible (s. 81.1, ¶81,011a).

See ‘‘parental leave’’, below, for additional leave entitlements foradopting parents.

Parental Leave

The Labour Standards Act states that the father and the mother of anewborn child, and a person who adopts a child, are entitled to parentalleave without pay of not more than 52 consecutive weeks (s. 81.10,¶81,011j).

Parental leave may not begin before the week the child is born, theweek the child is entrusted to the employee or the week the employeeleaves work to go to a place outside Quebec in order to take custody of thechild. The leave ends no later than 70 weeks after the child is born or isentrusted or comes into the custody of the employee. However, in certaincases set out in the Regulations, the 70-week maximum period in whichthe 52-week leave can be taken can be extended to a period of up to 104weeks after the birth of the child or after the child was entrusted to theemployee, in the case of adoption (s. 81.11, ¶81,011k).

If the child is hospitalized during the parental leave, the leave may besuspended during the hospitalization, with agreement by the employer. Inaddition, if, before the expiry date of the leave, an employee sends theemployer notice accompanied by a medical certificate stating that thehealth of the child requires an extension, the employee is entitled to anextension for the duration indicated in the medical certificate (s. 81.14.2,¶81,011nb). Furthermore, at the request of the employee, parental leavemay, in the cases where the child is hospitalized or where the employee isabsent due to illness or accident, be divided into weeks and be on condi-tions, for the duration, and within the time period prescribed by by-law(s. 81.14.1, ¶81,011na).

An employer is entitled to a written notice of at least three weeks,indicating the specific date on which the leave will commence and thedate of the employee’s return to work. However, the notice may be shorterif the employee must stay with the newborn child or newly adopted child,or with the mother, because of the mother’s or child’s state of health(s. 81.12, ¶81,011m).

Ordinarily, the employee would return to work on the date specifiedin the notice of intent to take parental leave, but the employee may returnto work before such a date after having given the employer at least threeweeks written notice of the new date of return to work. If the employerconsents, the employee can return to work on a part-time or intermittentbasis during parental leave (s. 81.13, ¶81,011m). If an employee does not

¶10,510



return to work at the end of the leave, the employee is presumed to haveresigned (s. 81.14, ¶81,011n).

The employee’s participation in the group insurance and pensionplans at work will not be affected by the absence from work, subject toregular payment of contributions under the plans. Other advantages avail-able to employees on parental leave may be set out by regulation (s. 81.15,¶81,011o).

At the end of a parental leave, the employee must be reinstated to hisor her former position, with the same benefits, including the wage he orshe would have been entitled to had the employee remained at work. If theemployee’s job no longer exists when he or she returns, the employeemust be extended whatever rights or privileges to which the employeewould have been entitled had he or she not taken the leave (s. 81.15.1,¶81,011oa).

Family Care Leave

The Act enables employees to be absent for 10 days per year, withoutpay, to fulfil obligations relating to the care, health or education of theemployee’s child or the child of the employee’s spouse, or because of thestate of health of the employee’s spouse, father, mother, father’s ormother’s spouse, brother, sister or one of the employee’s grandparents.The leave may be divided into days and may also be divided into part daysif the employer consents. The employee must advise the employer of his orher absence as soon as possible and take reasonable steps to limit both theleave and the duration of the leave (s. 79.7, ¶81,009g).

An employee who has 3 months of uninterrupted service can beabsent without pay for a maximum of 12 weeks in a year where theemployee is required to attend to the needs of his or her child, spouse,spouse’s child, father, mother, brother, sister, or one of his or her grand-parents who has a serious illness or has had a serious accident. Theemployee must advise the employer of the absence as soon as possible andprovide documentation justifying the absence if the employer so requests.An extension, adding up to a total absence of 104 weeks, will be allowed inthe case of the serious and potentially mortal illness of an employee’schild, as attested by a medical certificate (s. 79.8, ¶81,009h).

The employee’s participation in the group insurance and pensionplans at work will not be affected by the absence from work, subject toregular payment of contributions under the plans (s. 79.8, ¶81,009h).

At the end of the absence, the employee must be reinstated to his orher former position with the same benefits, including the wage theemployee would have been entitled to had he or she remained at work. Ifthe job no longer exists when the employee returns, he or she must be

¶10,510



extended whatever rights or privileges to which the employee would havebeen entitled had the leave not been taken. If the employer makes dismis-sals or layoffs that would have included the employee had the employeeremained at work, the employee retains the same return-to-work rights asthe employees who were dismissed or laid off (s. 79.8, ¶81,009h).

No employee under these family care leave provisions can be grantedany benefit to which the employee would not have been entitled if theemployee had remained at work (s. 79.8, ¶81,009h).

Bereavement Leave

The Labour Standards Act provides that an employee may be absentfrom work for one day with pay by reason of the death or funeral of his orher spouse, child, child of the spouse, father, mother, brother, or sister.The employee may also be absent from work for four more days, withoutpay, on such occasion (s. 80, ¶81,010).

An employee may also take bereavement leave of one day, withoutpay, on the death or funeral of a son-in-law, daughter-in-law, grandparentor grandchildren or the father, mother, brother or sister of his or herspouse (s. 80.1, ¶81,010a).

On such occasions, the employee must advise the employer of his orher absence as soon as possible (s. 80.2, ¶81,010b).

Special bereavement leave provisions apply to employees working inthe men’s and boys’ shirt, women’s clothing, men’s clothing, or leathergloves industries under the Labour Standards Specific to Certain Sectorsof the Clothing Industry Regulation. Such employees are entitled to: (1)three days of paid leave with respect to the death or funeral of theemployee’s spouse, child, or the child of the employee’s spouse, or of theemployee’s father, mother, brother, or sister, and an additional two days ofunpaid leave; (2) one day of paid leave with respect to the death orfuneral of one of the employee’s grandparents, or of the father or motherof the employee’s spouse; and (3) one day of unpaid leave with respect tothe death or funeral of a son-in-law, daughter-in-law, one of theemployee’s grandchildren, or of the brother or sister of the employee’sspouse (Reg. ss. 10, 11, 12).

Special Occasion Leave

Labour Standards Act provides that an employee may be absentfrom work for one day with pay on the day of his or her wedding or civilunion. An employee may also be absent from work, without pay, on the dayof the wedding or civil union of one of his or her children, father, mother,brother or sister or of a child of his or her spouse. The employee must

¶10,510



advise the employer of his or her absence at least one week in advance(s. 81, ¶81,011).

(CCH ¶6082)

¶10,600 Education LeaveCollective agreements sometimes provide for leave, with or without

pay, for the purpose of retraining or skills updating.

In Hotel Dieu Hospital v. Canadian Union of Public Employees,Local 1097 et al. an ambulance driver was required by legislation to passan emergency medical care examination and applied for one day’s pay fortime to write the test, pursuant to an education leave clause in the collec-tive agreement. An arbitrator decided that the driver was entitled to pay.The hospital appealed.

The Court held that the collective agreement said an employee wasentitled to paid education leave if required by the employer. The Courtdecided that as the legislation — not the employer — required theemployee to take the exam, the employee was not entitled to a paid leave.

In Corry v. Board of Trustees of Calgary School District No. 19, ateacher on a one-year educational leave of absence at 65 per cent of hissalary was entitled to payment of wages pursuant to the leave agreementdespite the fact that while on leave, he accepted a temporary teachingposition while still attending his courses, and his collective agreement hadexpired. The educational leave had been granted pursuant to an article ofthe collective agreement and could not be considered as entirely indepen-dent of it. The School Act contemplated that a contract of employmentbetween the School Board and the teacher may contain terms and condi-tions in addition to those in the collective agreement. In this case theBoard entered into a separate contract with the teacher and the contractcould stand independently of the expired collective agreement and sur-vived the expiration of that agreement. Nor did the acceptance of thetemporary teaching position terminate the educational leave contract asthe regulations contemplated the compatibility or co-existence of workand leave. As such the teacher was entitled to pay for the period of theeducation leave.

¶10,700 Voting at Elections¶10,705 Federal

The Canada Elections Act, S.C. 2000 c. 9, provides that employeeswho qualify as electors in a federal election are entitled to three consecu-tive hours, while the polls are open, during which to vote. If the hours of

¶10,705



work do not allow for this, an employee must be allowed the time forvoting that is necessary to provide those three consecutive hours(s. 132(1)), at the employer’s convenience (s. 132(2)).

This provision does not apply to an employee engaged in the trans-portation of goods and passengers by land, air, or water, who is employedoutside his or her polling division, if the additional time cannot be allowedwithout interfering with the transportation service (s. 132(3)).

An employer cannot make deductions from wages, including hourly orpiece-work wages, or impose a penalty on an employee for the time thatthe employer allows the employee to vote (s. 133(1)).

The hours during which the polls are open on election day vary acrossthe country from time zone to time zone, and are as follows: from 8:30 a.m.to 8:30 p.m. in the Newfoundland and Labrador, Atlantic or Central timezones; from 9:30 a.m. to 9:30 p.m. in the Eastern time zone; from 7:30 a.muntil 7:30 p.m. in the Mountain time zone; and from 7:00 a.m. until 7:00p.m. in the Pacific time zone (s. 128(1)). As well, if the polling day occursduring the period of daylight saving time, the voting hours in Saskatch-ewan are 7:30 a.m. to 7:30 p.m. in the Central time zone and 7:00 a.m. to7:00 p.m. in the Mountain time zone (s. 128(2)). Therefore, employees oncertain shifts may not require extra time for casting their ballots.

Employees who absent themselves to vote at a time other than thatprovided by the employer are not entitled to payment for the time lost.

An employer cannot interfere with granting an employee time off forvoting as prescribed whether through intimidation, undue influence, orany other means (s. 134).

(CCH ¶6131)

¶10,710 Provincial

The following chart indicates for each province the time allowed forvoting, the penalties for violation by the employer of the provisions of thesection, and the reference to the Act where the provisions are contained.In each case, the employer is entitled to specify the hours and theemployee is entitled to be paid for the time he is absent from work.

¶10,710



Provincial Time Off for Voting Chart

Penalties forProvince Time Allowed Violation Authority

Alberta

(Act extends to Three consecutive Individual — f ine not Local Author it iesrailway companies hours. exceeding $500. Elect ion Act, R .S.A .and to scheduled 2000, c. L-21, ss. 58,commercial air 155.service companiesand their employeesexcept thoseactually engaged inoperation ordispatching of trainsor scheduledcommercial aircraftwhere inter ferencewith scheduleswould result .)

Brit ish Columbia

Per iod — to allow Fine of not more Elect ions Act, S.B.C.four hours between than $1000 or 1995, c. 51, s. 74.opening and closing imprisonment forof poll. one year or both.

Manitoba

Per iod — to allow Individual — f ine not Elect ion Act, S.M.three consecutive over $200. 1987, c. E-20, s. 89.hours until close of Corporation — f inepoll. not over $500.

New Brunswick

(Act extends to Three consecutive Fine not more than Elect ions Act,railway companies hours between $500 and costs and R .S.N.B. 1973, c. E-3,and employees opening and closing disqualif ication re ss. 86, 118, and 119.except those of poll. voting.actually engaged inrunning trains.)

¶10,710



Provincial Time Off for Voting Chart — continued

Penalties forProvince Time Allowed Violation Authority

Newfoundland andLabrador

(Act extends to Per iod — to allow Fine not more than The Elect ion Act,railway companies three consecutive $500 or R .S.N. 1990, c. E-3,and employees hours until close of imprisonment on ss. 75, 105.except those poll. default for 3 months,actually engaged in or both.running of trains.)

Nova Scot ia

(Employees engaged Three consecutive Fine not exceeding Elect ion Act, R .S.N.S.in operation of hours. $2000, or 1989, c. 140, ss. 133trains, buses, motor imprisonment up to and 210.transports, ships, two years, or both.and aircraftexcepted.)

Ontar io

Per iod — to allow General of fence — Elect ion Act, R .S.O.three consecutive f ine not over $5,000. 1990, c. E.6, ss. 6hours until close of and 97.poll.

Pr ince EdwardIsland

(Employees engaged Per iod — to allow Fine not exceeding Elect ions Act,in operation of up to one hour for $2,000; R .S.P.E.I. 1996, c. 12,trains, buses, motor voting if his imprisonment not s. 81.transports, ships, employment does exceeding 2 years;and aircraft not permit one hour or both.excepted.) of his own time.

¶10,710



Provincial Time Off for Voting Chart — continuedPenalties for

Province Time Allowed Violation Authority

Quebec(Act extends to Per iod — to allow Fine not less than Elect ion Act, R .S.Q.railway companies four hours in $100 or over 1989, c. 1, ss. 335.and employees addition to meal $1,000;in the case ofexcept those time until close of an artif icial person,actually engaged in poll. a f ine not less thanoperation of trains.) $300 or over $3000.

For a subsequentof fence within 5years, a f ine notunder $200 or over$2000; in the caseof an artif icialperson, a f ine notunder $600 or over$6000.

SaskatchewanPer iod — to allow Fine not less than The Elect ion Act,three consecutive $100 and not more R .S.S. 1978, c. E-6,hours until close of than $500. s. 64.poll.

N.W.T./NunavutPer iod — to allow General penalty of a Elect ions Act,three consecutive f ine of not more R .S.N.W.T. 1988,hours until close of than $1,000 or of c. E-2, ss. 123, 226.poll. impr isonment for

not more than ayear or both.

Yukon(Employees engaged Per iod — to allow General penalty of a Elect ions Act, S.Y.T.in operation of three consecutive f ine of not more 1986, c. 48, ss. 328,public hours until close of than $2,000 or of 329, 331.transportation poll. impr isonment forservices or engaged not more than threein emergency months or both.services may voteby proxy.)

(CCH ¶6132)

¶10,715 Municipal

Alberta

The Local Authorities Election Act, R.S.A. 2000, c. L-21, s. 94, pro-vides that employees are entitled to three consecutive hours for the pur-pose of voting. However, if the hours of work do not allow this, such

¶10,715



additional time shall be given at the employer’s convenience as may benecessary to provide three consecutive hours for voting while polls areopen. No penalty may be exacted from the employee for such absencefrom work during voting time, nor may deductions from his pay be made.

New Brunswick

The Municipal Elections Act, S.N.B. 1979, c. M-21.01, s. 29, providesthat a qualified voter is entitled to three consecutive hours on polling dayfor voting. If hours of employment do not permit this, the employer mustgrant sufficient time off work to provide the required three hours. Anyadditional time is at the employer’s convenience. No deductions may bemade in wages nor any penalties imposed for such absence from work. Anemployer who refuses to grant time off or who interferes with a voter inusing voting time is guilty of an offence.

Ontario

The Municipal Elections Act, R.S.O. 1990, c. M.53, makes the fol-lowing provisions for voters. If an employee who is a qualified voter doesnot have three consecutive hours to vote while the polls are open onelection day because of hours of work, it shall be at the employer’s conve-nience to allow the employee such time for voting as is necessary toprovide the three consecutive hours. No employer shall make any deduc-tion from pay or exact any penalty from the employee because of absencefrom work during the time allowed by the employer for voting. Everypolling place shall be open for the purpose of taking the poll at everyelection from 10 o’clock in the forenoon until 8 o’clock in the afternoon ofpolling day. References are to standard time.

Quebec

The Cities and Towns Act, R.S.Q. 1977, c. C-19, s. 210, provides thatan employer shall grant each employee who is an elector at least fourhours for voting on polling day plus the usual lunch time. No deductionfrom salary shall be made or penalty imposed for such absence. Thissection applies to railway companies and their employees, except thoseemployees engaged in the operation of trains where such time off workwould impair service. Any person contravening these provisions is guiltyof an offence and is liable on summary proceedings to a fine of $100.

Yukon

The Municipal Act, S.Y.T. 1980 (2nd), c. 17, s. 91, provides that anemployer shall grant every employee who is an elector at least four clearhours to vote while the polls are open. No deduction from salary shall bemade or penalty imposed for such absence.

(CCH ¶6133)

¶10,715



¶10,800 Jury DutyAlberta

The Jury Act, R.S.A. 2000, c. J-3 provides that an employer mustallow an employee sufficient leave from employment to serve as a jurorwhen that employee is summoned. An employer or an employer’s agentwho, directly or indirectly, threatens to cause or actually causes loss ofposition or employment because of an employee’s response to the sum-mons or actual service as a juror is guilty of an offence and is liable to afine of not more than $5,000 and/or to imprisonment not exceeding threemonths (s. 23).

British Columbia

If an employee is required to attend court as a juror, the employermay not terminate the employee’s employment during the leave, orchange a condition of employment without the employee’s written con-sent. As soon as the leave ends, the employer must place the employee inthe position held before the leave commenced, or in a comparable posi-tion. If the employer’s operations are suspended or discontinued when theleave ends, the employer must, subject to the seniority provisions in acollective agreement, place the employee in his or her previous position ora comparable position as soon as operations are resumed (s. 55, ¶39,335).

Manitoba

The Jury Act, C.C.S.M. c. J30 provides that every employer shallgrant to an employee summoned to serve on a jury, a leave of absencesufficient to the discharge of the employee’s duty, with or without pay.Upon the employee’s return, the employee shall be re-instated to his orher position, or a position of a comparable nature, at not less than theemployee’s wages at the time the leave of absence began, and without lossof seniority or benefits accrued to the commencement of the leave ofabsence.

An employer who fails to provide the aforementioned is liable to theemployee for any breach of the employer’s obligation. As well, anyemployer who, directly or indirectly, threatens to cause or causes anemployee’s loss of position or employment or threatens to impose orimposes any type of penalty on an employee because of an employee’sresponse to a summons or service as a juror is liable on summary convic-tion to a fine of not more than $5,000 and/or to imprisonment for not morethan three months. At the time that sentence is imposed on the offendingemployer, the aggrieved employee may apply for and receive compensa-tion of up to $5000 for actual loss of wages which occurred as a result ofthe commission of the offence by the employer. When calculating this loss,the period during which the employee was serving on the jury is notincluded (s. 24.1).

¶10,800



New Brunswick

An employer must allow an employee an unpaid leave of absence forany period that the employee must be away from work as a result of beingsummoned or selected to serve on a jury or served with a summons toattend a court proceeding as a witness (s. 44.023(1), ¶46,644w). In suchcircumstances, the employer may require the employee to reimburse theemployer for any amount that the employee receives as a jury or witnessfee except for amounts received as compensation for travel, meal oraccommodation expenses (s. 44.023(2), ¶46,644w).

Newfoundland and Labrador

The Jury Act, R.S.N. 1990, c. J-5 requires that the employer of aperson who is summoned for jury service, serves as a juror or who isrequired to attend upon a court as a witness in a criminal or quasicriminalcase, or upon an inquiry held under the Summary Proceedings Act shallpay that person the same wages and give that person the same benefitsduring that persons absence that they would have received if they had notbeen so summoned or required to attend upon a court or inquiry.

An employer who fails to comply with these provisions is liable onsummary conviction to a fine of not more that $1,000 or, in default ofpayment, to a term of imprisonment of not more than three months. Aswell, the employer is liable for the wages and benefits that the courtdecides are owed to the employee.

In the case of a civil jury where an employer incurs a cost as a resultof compliance, the presiding judge may make an order as to those costs(s. 37).

Nova Scotia

The Labour Standards Code provides that an employee is entitled toan unpaid leave of absence for periods of time the employee is required toperform jury duty or is required by subpoena or summons to appear as awitness (s. 60A, ¶55,460a). On such occasions the employee must advisethe employer of his or her absence as soon as possible (s. 60C, ¶55,460c).

Ontario

The Juries Act, R.S.O. 1990, c. J.3 requires that every employer grantthe necessary leave, either paid or unpaid, to an employee who is sum-moned for jury duty. Upon the employee’s return, the employee shall bereinstated to his or her former position, or a comparable position at notless than the employee’s wage at the time the leave of absence began, andwithout loss of benefits or seniority accrued to the commencement of theleave of absence.

¶10,800



An employer who fails to comply is liable to the employee for any lossoccasioned by the breach of obligation. As well, any employer who,directly or indirectly, threatens to cause or causes an employee loss ofposition or employment, or threatens to impose or imposes any type ofpenalty on an employee because of the employee’s response to a summonsor service as a juror, is guilty of an offence and on conviction is liable to afine of not more than $10,000 and/or to imprisonment for not more thanthree months (s. 41).

Prince Edward Island

The Jury Act, S.P.E.I. 1992, c. 37 requires an employer to allow anemployee sufficient leave of absence from employment to serve as a jurorwhen the employee is summoned to do so. An employer or the employer’sagent who, directly or indirectly, threatens to cause or causes loss ofposition or employment of an employee summoned, because of his or herresponse to the summons, or his or her service as a juror is guilty of anoffence and is liable to a fine of not more than $5,000 and/or to imprison-ment of not more than three months (s. 35).

Quebec

The Jurors Act, R.S.Q. c. J-2 provides that no employer or anemployer’s agent may dismiss, suspend or transfer an employee, practicediscrimination or take reprisals against an employee or impose any othersanction on the ground that the employee is summoned or has acted as ajuror.

Any contravention, in addition to being an offence against the JurorsAct, authorizes the employee to bring a case before a labour commissionerappointed by the Labour Code in the same manner as if the contraventionwas made by reason of the exercise by the employee of a right arisingfrom the Labour Code (s. 47).

Saskatchewan

The Jury Act, 1981 provides that no person shall be dismissed fromemployment by reason only of their being summoned for jury service orbeing required to serve on a jury (s. 13).

Any person, including an employer, who contravenes any section ofthe Act is liable on summary conviction to a fine of not more than $1,000(s. 33). As well, where an employer contravenes section 13 (above), sec-tions 2 (¶85,102), 89 (¶85,189) and 90 (¶85,190) of the Labour Stan-dards Act apply. Section 89 provides that where an employer is convictedof wrongfully discharging or suspending an employee or otherwise dis-criminating against an employee the employer may be ordered to reinstatethe employee in his or her former employment under the same terms andconditions in which the employee was formerly employed and may be

¶10,800



ordered to pay to the employee wages which the employee would haveearned if the wrongful discharge or suspension had not occurred and maybe further ordered to revoke any discriminatory action. Section 90 sets outthe three year time limit for commencement of a prosecution for analleged offence.

(CCH ¶6140)

¶10,800

10,000 leaves of absence - cch · ¶10,000 leaves of absence paragraph paragraph introduction........

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