Upcoming Provincial and Territorial Elections: Employers’ Obligations

Of the eight Canadian provinces and territories that have passed laws calling for fixed-date elections, five call for general elections to be held in October every four years. Those five jurisdictions will all hold general elections this October, as follows:

• Prince Edward Island, Monday, October 3, 2011
• Northwest Territories, Monday October 3, 2011
• Manitoba, Tuesday, October 4, 2011
• Ontario, Thursday, October 6, 2011
• Newfoundland and Labrador, Tuesday, October 11

Once the formalities have been completed—the legislative session dissolved and the election writ signed by the Lieutenant-Governor of each province or territory—the lawn signs can come out and political parties in each jurisdiction will kick their month-long campaigns into high gear with a long list of election promises.

Employers have certain obligations to employees under their respective Election Acts. An employee who is eligible to vote must be allowed a certain number of consecutive hours for the purpose of casting his or her vote. The number of consecutive hours depends on the province or territory. Meaning:

• In Ontario, Northwest Territories and Manitoba: three hours
• In Newfoundland and Labrador: four hours
• In Prince Edward Island: one hour

If employees have the required number of hours of their own time available during polling hours, then employers need not offer additional time for voting. If, however, an employee does not have this time available, the employer, upon request, must allow the employee enough time off with pay as stated in the law.

Employers have the right to decide when during the day is most convenient for granting any necessary time off. It is also important to note that employers are not required to take into account an employee’s travel time to vote.

Employers may not make deductions from an employee’s pay, require the employee to take a vacation day or sick day for the time taken off work by an employee to vote.

In Ontario and Manitoba only, the Act also provides for unpaid, job-protected leave for employees who wish to serve as returning officers or poll officials. In Manitoba the Act applies to those who wish to serve as a candidate, as an election official or enumerator, or as an election volunteer.

An Ontario employee must request such leave at least seven days before the leave is to begin. In Manitoba it is five days before the leave begins and the request must be in writing.

In Ontario, the Act does not limit the duration of such leave.

However, in Manitoba, a request for a leave may be made either before or after an election is called. The leave must not begin:

(a) In the case of a fixed-date election,

(i) Until 75 days before election day, for a returning officer, assistant returning officer or enumerator,

(ii) Until 40 days before election day, for a revising officer or revising agent, or

(iii) Until the election is called, for a candidate or election volunteer, or for an election official other than a returning officer, assistant returning officer, revising officer or revising agent; or

(b) In the case of any other election, until the election is called.

The employer may require the employee to provide written confirmation that he or she is eligible for the leave. A leave for a returning officer or assistant returning officer must not extend beyond the day a candidate is declared elected. The leave for any other election official, enumerator or election volunteer must not extend beyond election day and, in the case of an election official or enumerator, ends when the person’s duties under the Act are completed.

However, the request must include a statement that, within three days after receiving the request, the employer has the right to apply to the Manitoba Labour Board for an exemption to the requirement to grant the leave. An employer may request an exemption from the requirement to grant a leave under the Act, if the employer believes that the leave would be seriously detrimental to the employer’s operations.

Further, the employer shall not dismiss or otherwise penalize the employee because the employee has exercised the right to be granted leave.

In Manitoba, the penalty for preventing an employee from voting, impeding or otherwise interfering with an employee’s right to vote is a fine of not more than $10,000, or imprisonment for a term of not more than one year, or both.

In Ontario, the penalty for preventing an employee from voting, impeding or otherwise interfering with an employee’s right to vote is a fine of up to $5,000. If an employer is convicted of this offence and a judge finds that the offence was committed knowingly, the employer will be liable to a fine of up to $25,000, or imprisonment up to two years less a day, or both.

In Prince Edward Island, an employer is guilty of an offence if it refuses, or by intimidation, undue influence, or in another way, interferes with the granting to an elector in his or her employ, of the consecutive hours for voting provided in the Act. They may be liable on summary conviction to a fine not exceeding $2,000, imprisonment for a term not exceeding two years, or both.

In Newfoundland and Labrador, an employer is guilty of an offence if it refuses, or by intimidation, undue influence or in another way, interferes with the granting to an elector in his or her employ, of the consecutive hours for voting provided in the Act.

In the Northwest Territories, an employer is guilty of an offence if it refuses, or by intimidation, undue influence or in another way, interferes with the granting to an elector in his or her employ, of the consecutive hours for voting provided in the Act. They will be liable on summary conviction to a fine not exceeding $5,000, or imprisonment for a term not exceeding one year, or both.