News & Views

REMINDER: CANADA LABOUR CODE - New Rules in force as of SEPTEMBER 1st 2019
October 16, 2019

REMINDER: CANADA LABOUR CODE - New Rules in force as of SEPTEMBER 1st 2019

Written by Ryan Hanna 

“The secret of change is to focus all your energy not on fighting
the old but on building the new.” Socrates

According to the government statistics, almost six percent of all Canadian workers are employed in a federally regulated industry. This amounts to about 900,000 employees and their 18,000 employers*. Federally regulated industries include banks, marine shipping, ferry and port services, telephone, telegraph and cable systems, and railway and road transportation, and private business necessary to the operation of a federal act, to name just a few.

If you happen to be an employee or employer in one of these, or other federally regulated areas, then you are subject to the provisions of the Canada Labour Code. On September 1, 2019, a sweeping collection of changes to that legislation came into force and all regulated employers must comply with those changes. These changes were implemented with an eye on modernizing work arrangements, which among other things includes the addition of flexibility and predictability to work time and hours and expanded entitlements to leave. 

For example, as of September 1, 2019, some of the key changes included:

1. Expanded entitlements to Leave: 

  • Aboriginal employees are now entitled to take up to 5 days of unpaid leave for the purposes of participating in traditional Aboriginal practices. This can include hunting, fishing and harvesting. 
  • Where an employee has experienced the passing of a family member, they are now entitled to 5 days of bereavement leave instead of 3. The first 3 days must be paid.
  • Employees are now eligible for up to 10 days of leave per year (5 days are paid) where the employee is a victim of family violence or where the employee is a parent of a victim of family violence. 

​2. Flexible Work:

  • Federally regulated employees now have the right to work out flexible work arrangements with their employers including modified hours of work, location of work and work schedules. An employee seeking such an arrangement must request the change in writing and the employer is required to respond within 30 days, with either a positive or negative answer including reasons where there is a refusal. Employers are also subject to restricted grounds for refusal, such as where the arrangement would negatively impact the employee’s quality or quantity of work, or the ability of the employer to meet customer demands.

3. Vacation - Employees are now entitled to increased annual vacation as follows:

  • 2 weeks of vacation time after 1 year of service 
  • 3 weeks of vacation time after 5 years of service 
  • 4 weeks of vacation time after 10 years of service 

The above noted changes represent only a small sample of the amendments that federally regulated employers are now subject to. If you are one of those employers then, hopefully, this is just a reminder to ensure your practices and procedures are up to date.

If this is a wakeup call and/or you are only now looking to make necessary changes then you are strongly encouraged to act as quickly as possible since non-compliance can result in potentially significant fines. 

If you are already implementing the new regime but have questions about how certain aspects of the law are to be implemented or interpreted, the federal government has conveniently published, on August 30, 2019, a set of “IPGs” or interpretations, policies and guidelines which can be very helpful to getting fully up to speed or just addressing circumstances as they arise*.

If you have any questions regarding the matter, please do not hesitate to contact Ryan Hanna directly at [email protected] or at 905 763 3770 x 250. 

*The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.

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*https://www.canada.ca/en/employment-social-development/programs/employment-equity/regulated-industries.html

*IPGS: https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies.html


 About the Author:

Ryan Hanna regularly acts on a range of legal matters and maintains a business oriented focus to his litigation practice, assisting clients with commercial disputes ranging from shareholder actions and wrongful dismissal claims to real estate, commercial leasing and construction lien matters, secured and unsecured debt enforcement, residential tenancy disputes and trademark infringement.

The Priority Interest that has you “Jumping the Queue”
October 03, 2019

The Priority Interest that has you “Jumping the Queue”

Written by Leslie Fluxgold & Stephanie Furlan 

A purchase money security interest (“PMSI”) is perhaps one of the most important exceptions to the “first to register” rule under the Ontario Personal Property Security Act (“PPSA”). It allows a secured party to obtain a first-ranking security interest in a subset of collateral. As per subsection 1(1) of the PPSA, a PMSI is defined as “a security interest taken or reserved in collateral, other than investment property, to secure payment of all or part of its price” or “a security interest taken by a person who gives value for the purpose of enabling the debtor to acquire rights in or to the collateral, to the extent that the value is applied to acquire the rights.” As long as the requirements in section 33 of the PPSA are met, the PMSI will supersede a prior registered security interest in the same collateral.

Obtaining a PMSI in Inventory Collateral (Subsection 33(1) of the PPSA)

Inventory can be defined as goods held for sale or lease by the debtor. To obtain a PMSI in inventory, it is important that the secured party meets the following three requirements before the debtor, or a third party on behalf of the debtor, obtains possession of the collateral:

  1. Execute the security agreement;
  2. Register the financing statement; and
  3. Send notice in writing to every other secured party who has registered a financing statement for the same class of collateral, before the registration date of the PMSI. In this notice, it is important to provide a brief description of the inventory by item or type and state that you have or expect to acquire a PMSI in such inventory.

Tip: Retain proof establishing when the debtor obtained possession of the collateral, such as a receipt of delivery or shipment via written, dated acknowledgement.

Obtaining a PMSI in Non-Inventory Collateral (Subsection 33(2) of the PPSA)

PMSIs differ between inventory and non-inventory collateral. To obtain a PMSI in non-inventory, the secured party must meet the following three requirements:

  1. Execute the security agreement;
  2. Register the financing statement; and
  3. Complete the above two requirements within 15 days. With tangible collateral, such as goods or equipment, this 15-day period begins from its delivery. Delivery can be specified as when the debtor receives possession of the collateral. In the case of intangible collateral, this 15-day period begins from attachment, not delivery. Attachment occurs when value is given, the debtor acquires rights in the collateral and the security agreement is executed.

The third requirement is the main difference between inventory and non-inventory collateral. With inventory, the PMSI is perfected at the time the debtor receives possession of the collateral, in other words, the secured party must meet the requirements before the debtor acquires possession of the collateral. As it relates to the transportation of goods, the debtor would be deemed to have possession of the collateral the moment that it hires a shipping company to transport the collateral. Whereas with non-inventory, there is a 15-day grace period that applies.

Please note that under subsection 33(3) of the PPSA, a seller’s PMSI has priority over a non-seller’s PMSI in the same collateral.

Impact on Section 427 Security Under the Bank Act of Canada (the “Bank Act”)

The above rules apply only to other PPSA creditors. Thus, in the instance of a security interest pursuant to section 427 of the Bank Act, it is important to remember that the PPSA rules of priority would not apply. If a search discovers a security interest under the Bank Act, the best course of action is to obtain from the bank an acknowledgement of priority.

If you have any questions regarding the matter, please do not hesitate to contact Leslie Fluxgold directly at [email protected] or at 905 763 3770 x 210. 

*The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.

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*Reference: Personal Property Security Act, R.S.O. 1990


About the Author:

Leslie A. Fluxgold is a respected advisor to the business community, with a focus on commercial real estate and commercial lending. Les has the expertise and hands-on experience to guide clients through complicated real estate matters and commercial loan transactions. 

Stephanie Furlan is the 2019-2020 articling student at FIJ. She first joined the firm as a summer student in 2018. Stephanie is a recent graduate of the University of Windsor Faculty of Law and University of Detroit Mercy School of Law Dual J.D. Program.