Threat of damage to or loss of property - Exceptions - Canada Labour Code, Part III - Division I - 802-1-IPG-093
Note: for the purpose of this web page, reference to “employee(s)” includes persons that are often referred to as “interns”. It excludes “student interns” who are undertaking internships to fulfill the requirements of their educational program
Coming into force: September 1, 2019
Note: In accordance with the Interpretation Act, words in the following text importing male persons include female persons.
The purpose of this IPG is to define the expression, "threat of damage to or loss of property" as it appears in sections 169.1, 169.2, 173.01, 173.1, 174.1 under Division I, Part III of the Canada Labour Code (Code).
Note: This IPG does not apply to classes of employees who were granted an exemption and/or modification to specific provisions as per the Exemptions from and Modifications to Hours of Work Provisions Regulations.
The exception to certain labour standards obligations related to the expression "threat of damage to or loss of property" only applies if it has previously been established that a "situation that the employer could not have been reasonably foreseen," as defined in IPG802-1-IPG-091, had occurred and there was evidence of an "imminent or serious threat," as defined in IPG802-1-IPG-092.
The following provisions have been added to the Canada Labour Code, Part III:
- break - 169.1
- rest period between work periods or shifts - 169.2
- notice - work schedule - 173.01
- notice - change to a work shift or period - 173.1
- limited right to refuse overtime to meet family obligations - 174.1
These amendments came into force on September 1, 2019.
The interpretation and application of the expression, "threat of damage to or loss of property" must be standardized nationally. Therefore, the 2 following questions will be addressed:
- what is the scope of the expression, "threat of damage to or loss of property" in relation to the above-mentioned sections?
- what criteria must a labour affairs officer review to determine whether a situation may have posed such a threat to an employer?
"Damage to or loss of property" in this context means any harm, breakage, damage or disaster, whether intentional or unintentional, affecting property owned by the employer or a third party for which the employer is financially responsible (leased property, goods, equipment...), resulting in the total or partial loss of the value of the property. By property, we mean material and monetary assets.
To be justified, the threat of damage to or loss of property must be real and must be direct or indirect consequence of a fault, omission or event beyond the employer's control (weather, legal, etc.). The cause may not be a combination of randomly listed items, neither the consequence of the employer that has failed to maintain its equipment in good working order.
To reach a finding, the labour affairs officer will first assess whether the situation at issue was reasonably foreseeable, and then examine the risk of damage, the severity of the suspected damage and the direct impact of the property loss. However, there is no pre-established threshold to determine or measure the severity or proportionality of damages to material and financial property. Therefore, the labour affairs officer must assess each situation in its entirety, based on the context and on the information provided by the employer or the employee.
The labour affairs officer will use this interpretation to decide on the matter of exceptions relating to the employer obligation to provide breaks, rest periods between shifts, an advance work schedule or notice of a work shift change, or preventing employees' from exercising their right to refuse overtime because of a family obligation.
- Despite all the IT security measures put in place by an employer in the banking sector to protect against potential cyber attacks, part of its banking network has been affected by a new type of virus that has successfully thwarted most of its protection measures. This attempt at hacking, which came from outside the bank and was the result of a technique never seen before, highlighted shortcomings in the bank's security system, which is intended to protect their customers' personal data. Immediately after the attack, the IT manager asked several of her employees to stay at work after their normal hours, to strengthen the bank's IT security. Since this situation is beyond what is reasonably foreseeable and the seriousness of the situation could cause major damage to the employer, the exception to the right to refuse to work overtime applies.
- A flour mill became infested with an unknown insect that attacks grain stored in silos at a phenomenal speed. The insect in question has never been seen before and no product is capable of stopping it. The employer could lose all of the grain in its facilities, resulting in a fatal loss to the company. In these circumstances, the employer would be exempted from its obligation to provide a 30-minute break between during the period of 5 consecutive hours of work, and a rest period of at least 8 consecutive hours between work shifts. Employees asked by the employer to work overtime to confront this threat would not be able to refuse the request. The exception to the right to refuse to work over time to carry out family responsibilities would apply.
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