North of 60 Blog

What’s the BIP?

The Government of the Northwest Territories (GNWT) has updated its Business Incentive Policy (BIP). The BIP is a way for the GWNT to recognize and account for higher costs associated with operating businesses in the Northwest Territories (NWT). The BIP applies a “bid adjustment” to qualified NWT businesses: essentially a 15% to 20% reduction on bid ...

In a landmark ruling, the Supreme Court of Canada has put an end to a protracted legal battle between the Northwest Territories’ French-Language School Board, the Commission scolaire francophone des Territoires du Nord‑Ouest (CSFTNO), and the Northwest Territories’ Minister of Education, Culture and Employment, revolving around the Minister’s authority to ...

Across the North, government procurement is big business. Governments strive to strike a balance between retaining procurement benefits (and dollars) in their own territories, while still providing value for tax payers. The Yukon Government recently overhauled its procurement policy to include advantages for Indigenous-owned businesses. Nunavut, through Nunavut ...

The Yukon First Nations Business Registry (YFNBR) was the subject of judicial review adjudicated in the Supreme Court of Yukon in March and April of 2023. In two written decisions (the judicial review and the remedy ordered), Justice Kent criticised the opaque criteria for registering a business as a First Nations business.^[1] Registration provides First Nations ...

Running a small business is a labour of love but heartache can happen when you encounter legal road bumps along the way. By implementing these five employment and corporate law considerations you can protect your heart (and wallet) from trouble and spend more time focusing on what matters – growing your business.

1. Put Agreements in Writing

Businesses can potentially ...

The Northwest Territories Lands Act, SNWT 2014, c 13, grants the Government of the Northwest Territories the authority to sell, lease, licence, or dispose of territorial lands. There is only one express prohibition regarding the sale of territorial lands:

            Section 8: No territorial lands suitable for muskrat farming shall be sold.

Of all the prohibitions imaginable in the ...

Case over large, gregarious deer^[1] destroying property in Yukon’s Takhini River Valley lives to see another day

The Yukon Court of Appeal decided a fascinating case on September 15, 2022, dealing with the Yukon Government’s decision to introduce wild elk between 1951 and 1994 in the Takhini River Valley.  In Grove v. Yukon (Ministry of the Environment), ranch owners in ...

The author would like to thank Gillian Bourke and Sheila MacPherson for their assistance in preparing this commentary.

Most provinces and territories have passed legislation recognizing and regulating personal directives in their jurisdictions. The sole exception is Nunavut, which as of 2022 does not have its own personal directives legislation. Because of this, it is ...

With news of the ending of COVID-19 restrictions in some regions in Canada and the announcement of the easing of restrictions in the NWT, the real question is whether working from home is here to stay. Can Northern employers ask that their employees to return to the workplace? The answer: it depends.

Health and Safety Obligations

The anticipated lifting of restrictions does not mean that the pandemic itself is over. The potential for future outbreaks and variants remains. Employers are obligated, pursuant to relevant health and safety legislation, to maintain a safe workspace for their employees. This obligation extends to the COVID-19 context, even as restrictions lift. If the employer does not take steps to prevent the spread and infection of COVID-19 in their workplace, such as providing personal protective equipment or installing physical barriers, they may be faced with requests from employees to work from home on the grounds of health and safety concerns surrounding COVID-19. As restrictions ease, it may be prudent for employers to keep such protections in place to assure employees that any health and safety concerns in their workspace continue to be adequately addressed. However, employers’ obligations may shift with changing public health guidance, and they should be mindful of these changes and adapt appropriately to new information and direction from official sources.

Accommodations

Employers must be aware of any obligations to accommodate under the relevant human rights legislation. If an employee refuses to return to work and the reason is based on a protected human rights ground, then a duty to accommodate could be triggered. An employer could find themselves in a situation where they must continue to provide the employee with an opportunity to work from home. However, the accommodation must be reasonable and cannot cause the employer undue hardship. When considering if an accommodation is reasonable, employers can request additional information to make this determination.

Constructive Dismissal

For employers who have implemented a robust response to COVID-19, and policies which include working from home, recalling employees may be a natural transition. It may also be an expectation of both the employer and the employee. However, where an employee was hired during the pandemic and has always worked from home, or where there is no COVID-19 policy or written employment agreement setting out the expectations of returning to work, an employee may claim that working remotely is a fundamental term of their employment. Consequently, unilaterally changing their place of work could be considered a constructive dismissal.

A constructive dismissal occurs when an employer unilaterally changes the fundamental terms of employment. Common examples of unilateral changes to fundamental terms of employment include changes to an employee’s hours, remuneration, or duties but could in theory apply in the context of ordering a return to work.

Absent a clearly written employment agreement or a COVID-19 policy that communicates an intention and approach to return in-person to the workplace, an employee may allege that there has been a change to the fundamental terms of their employment.

Employee Retention

Even if an employer is on the right side of the law when asking employees to return to the office, recognizing the benefits of having a continued work-from-home policy may be beneficial.

Recent surveys indicate that employees across Canada would prefer to continue working from home permanently or with a mix of in-office and work from home. Data also suggests that there is a significant number of employees who would resign from their positions if forced to return to work, both for safety and lifestyle reasons.

If employers have not significantly experienced an impact on work productivity and efficacy while their employees have been working from home, it may be advantageous for employers to weigh their options.

Instituting a progressive, flexible approach to working from home could have the effect of boosting employee retention and moral.

Ultimately, an employer could force a return to an in-person working environment but whether they should depends on the unique circumstances of each workplace.

If you have any questions about your organisation’s COVID-19 policies, please contact a member of our Northern Group.

As a part of Lawson Lundell’s North of 60 blog, we will be providing summaries of every civil law decision from the Court of Appeal in the Yukon, Northwest Territories, and Nunavut in two installments per year. The following summaries are all of the decisions release from January 1, 2021 to June 30, 2021. 

List of Cases

• Yukon Energy Blocked from Including Energy Reduction ...