Author Segal LLP

Take Steps to Ensure Unbiased Retirements

Promote Flexibility and Choice

thmb_tax_trusts_nest_egg_planning_silver_bzAs the baby boom generation continues aging, retirement is becoming an increasingly complex economic, employment and human rights issue that can trigger age-discrimination concerns.

Defending Bona Fide Requirements

Discrimination or exclusion from a job is allowed in certain situations if the company shows that the position requires specific qualifications, which are known as bona fide occupational requirements (BFOR).

In a landmark ruling, the Supreme Court of Canada set a three-pronged test for a BFOR, determining that it must be:

1. Adopted for a purpose or goal that is rationally connected to the functions of the position.

2. Adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal.

3. Is reasonably necessary to accomplish the purpose or goal in the sense that the employer cannot accommodate without undue hardship persons who don’t have the qualification. (Meiorin v. The Government of British Columbia).

The test requires that employers take into account the capabilities of different members of society before it adopts a BFOR and standards and tests to evaluate a person against the requirement. The standards must only reflect the true requirements of the job.

The physical demands of certain jobs may allow employers to restrict jobs to those over a certain age and those who don’t have certain chronic physical conditions and disabilities.

This is allowed because employers have a duty to provide a reasonable level of safety in the workplace, which includes ensuring that employees performing their jobs aren’t a danger to themselves or others.

Mandatory retirement is no longer a universal practice in Canada. At the federal level, it is still permitted under the Human Rights Act when an individual reaches the normal age of retirement for employees working in similar positions. And Canadian case law suggests that in some circumstances, laws or government policies permitting mandatory retirement are justified under Section 1 of the Charter of Rights and Freedoms.

However, several provinces and territories have now banned mandatory retirement at the age of 65 unless:

  • There are bona fide and reasonable requirements for essential job duties.
  • Accommodation would cause undue hardship to the business. (See right-hand box for the legal test of bona fide occupational requirements.)

Confronted with a decline in the number of employees retiring or a need to reduce the work force, some companies also offer voluntary early retirement packages. These can certainly benefit all staff members to the degree that the plans offer older employees a chance to pursue other interests or ambitions, ensure that fewer people will involuntarily lose their jobs and help retain promising young employees by offering more chances for them to advance in the company.

But early retirement plans by their nature target older employees and should be used carefully to avoid discrimination concerns.

First and foremost, early retirement plans should be truly voluntary and not contain any coercive element, according to the Ontario Human Rights Commission. For example, if faced with the possibility of losing their jobs altogether, many employees may feel compelled to accept early retirement. Packages can also be presented in a way that suggest older employees are being targeted or that refusal to accept the offers will result in some retaliation.

Some employees may even accept an offer as an alternative to facing negative workplace attitudes toward older staff members, which could suggest that they feel compelled to accept retirement.

So if your company is considering offering early retirement to its employees, consult with a lawyer to ensure that the offer is properly designed and doesn’t raise red flags of age-discrimination.

Here are some other prudent considerations form the Ontario Human Rights Commission when providing incentives for an early retirement:

  • Offer a plan that does not pressure employees to accept it or penalize those who reject it. Regardless of how generous a package is, companies could be subject to claims of age discrimination if their plans aren’t truly voluntary.
  • Define the eligibility criteria and share it with all employees. Some companies even offer similar voluntary exit packages to individuals who are not near retirement.
  • Do not link acceptance of an early retirement package to job loss. If downsizing, indicate the criteria your company is using to select the jobs that will be eliminated. Assure staff members that eligibility for a voluntary exit program in no way influences decisions about job loss. Choose positions to terminate, rather than people, and don’t re-establish a position after it’s been eliminated.
  • Structure pensions and benefits so that the actuarial value of reduced pensions for early retirees is at least equal to the current value of the deferred pensions for those electing to stay until they are eligible for full benefits.

Ease the transition: When your employees retire or accept an early retirement package, consider accommodating them with programs that help them ease out of the daily work routine. Programs could include flexible hours and working conditions, part-time positions, job sharing arrangements, and hiring retired workers for short-term contracts and consultant positions.

(For more information on how to avoid claims of age discrimination, click here to read our previous article, “Guarding Against Age Bias.”)

Tap into the Growing Power of Social Recruiting


Companies are increasingly turning to social recruiting — using social media outlets to find applicants.

 Fine Tune Your Strategy
If your business wants to socially recruit, keep in mind that each platform attracts different types of people and that looking for applicants online doesn’t work for certain jobs.For example, mainstream blue-collar jobs in trucking, heavy industry or mining may require the traditional approach.On the other hand, high paid corporate positions, which are generally filled with the help of a head-hunter, may be able to benefit from a bit of social recruiting.

Social media sites vary in terms of who you can attract. If you run a small grocery store, potential candidates are likely logging onto more casual sites such as Facebook. If your company needs a director of human resources, LinkedIn may be the best route.

Twitter works well for broadcasting. Tweets can direct applicants to your business’s Web site or Facebook page. And tweets offer the potential for re-tweeting, which can lead to a viral recruitment campaign.

Cost and efficiency are among the reasons. Plus, Canada has one of the highest rates of social media usage in the world.

Here’s a cost comparison between old school and contemporary head-hunting.

Using traditional methods, the estimated cost of filling a $60,000-a-year position looks something like this:

  • Newspaper ad        $5,000
  • Online job board     $700
  • Recruiter’s fee        $15,000 (25 per cent of starting salary)
  • Total:                    $20,700

With a social recruitment approach, the process might look like this:

  • Your business plans a couple of open house meet and greets.
  • The information goes out on your Facebook, Twitter and LinkedIn pages, as well as your corporate Web site. Followers and fans spread the word.
  • You ask employees to place the job posting and open house invitations on their pages. Before you know it, you could have hundreds of job applicants at the open houses.

Total: The cost of cheese, wine and whatever refreshments you might want.

As social recruiting becomes increasingly effective in luring candidates, your company needs to plan strategies to gain the upper hand. Here are four tips on how to snare the crème de la crème:

1. Think 80/20. That’s the Pareto Principle, and it means that 20 per cent of something is always responsible for 80 per cent of the results. For example, 20 per cent of customers account for 80 per cent of revenue.

Start with the large sites. LinkedIn, Facebook, YouTube and Twitter will generally provide the 80 per cent result, particularly if you cross publish. Try to avoid redundancy. A little repetition is fine, but tweeting the same message seven times in one day is overkill.

2. Get involved. Participate in conversations with substantive and thoughtful content. Look for individuals who are genuinely interested in your company’s business and industry. If you connect with a specific person, individualize your approach. And always be responsive. If someone asks you a question, find a way to respond, even if you have to take the conversation offline.

3. Be real. In order to see the “real” candidate you, too, must be authentic. Social recruiting is about relationships. Your company and its representatives should be forthright about the business, its culture and its jobs. In a hiring environment, people generally connect with people, not brands.

Connect with as many social networkers as possible – each is a potential referral to the right person for the job your company wants to fill. Watch how individuals connect online. If they are actively engaged, that trait may transfer to the job.

4. Don’t be all work and no play. Engage in the high-tech equivalent of chit-chat. Have fun and share interesting news and bits of information.

If your business has some colourful history, share the stories. If your company had a recent get-together, post some pictures. The fun and entertainment on social sites is limited only by imagination.

Dig in and build your online presence now, even if you don’t have any hiring plans. By making connections and creating a vibrant online community, your enterprise will be prepared to reach a broad audience for less money when it does decide to fill a few openings.

Consumers Are Aggressive When It Comes to Privacy

thmb_sepia_security_lock_padlock_bzThe Mot du Jour: Consensual Marketing

Despite a growing number of privacy protection laws, consumers are increasingly taking the issue into their own hands with actions that signal it may be time to alter your marketing efforts.

Despite a growing number of privacy protection laws, consumers are increasingly taking the issue into their own hands with actions that signal it may be time to alter your marketing efforts.

At least that is the case in the U.S., according to a survey that shows a 30 per cent increase in the number of individuals taking privacy-assertive actions.

Canadian companies should take heart, however.Another survey of corporate attitudes about privacy showed that Canadian companies care more about privacy than their American counterparts: 61 per cent of surveyed Canadian companies linked “good privacy practices” to customer trust and brand loyalty, compared to only 17 per cent of U.S. companies.

The U.S. study of consumer concerns about private data does offer valuable insights for businesses. Among the findings:

At Issue



Asked company to remove name and address from marketing lists 87% 58%
Refused to give data because it was too personal or not necessary 83% 78%
Asked company not to sell or provide name and address to another company 81% 53%
Didn’t use a company because they were unclear how the data is used 60% 54%
Asked to see the information about them in company records. 15% 18%

The message from these figures is that smart companies are altering their privacy policies to make them more meaningful to their customers and are switching their marketing to consensual programs from consumer targeting.

But to get a fuller sense of your customer’s attitudes, it is wise to survey them to get a handle on how they feel about your current privacy policies, marketing efforts and any new information-collection and marketing campaigns you are considering.

“Getting to Know all About You”

When it comes to marketing, you can take the shotgun approach and mail  everything, or you can offer your customers an a la carte selection. The latter choice is consensual marketing.

Take a hint from American Express of Canada. The company asked its cardholders to select either, mailings that interested them, no mailings at all, or all mailings.

From those who responded, the company learned what products and services they were most interested in and effectively received consent to send solicitations in those categories.

The idea is that the cardholders are then more receptive to the mailings, actually read them, and consequently, are more likely to respond.

However, don’t worry. As a Canadian company, chances are you’re doing pretty well already. The survey comparing Canadian and U.S. companies, which was commissioned by the Ontario Information and Privacy Commissioner, found that:

  • Privacy preferences of customers are captured by 79 per cent of Canadian companies, compared to 53 per cent of U.S. companies;
  • Eighty-two percent of Canadian companies have privacy-training programs and 71 per cent have privacy-awareness activities for new employees, compared to just 50 per cent and 43 per cent in the U.S.;
  • About three-quarters of Canadian companies assigned a senior executive as their privacy officer, and those individuals were twice as likely to be assigned on a full-time basis. In the U.S. only half the companies have a privacy officer;
  • Nearly 70 per cent of Canadian companies have a policy regarding surveillance and computer monitoring in the workplace, compared with just 13 per cent of U.S. companies. U.S. businesses, however, are more likely to give their employees a say in how their data is collected, and
  • Canadian companies are more likely to let consumers “opt out” over the secondary use and sharing of their personal information.

The bottom line: Canadian companies appear to view privacy programs as a way to improve relations with customers while American companies view them as a way to comply with the law and avoid litigation.

Customers Aren’t Always Right

As a successful business owner, you know customer satisfaction is the key to continued sales and profits. But you also know it’s harder to please some customers than others, and some can be downright problematic.

Of course most customers take little time and effort. They understand that their relationship with your company is commercial. That is, your business offers a product or service and they agree to a set rate and terms.

Tips on Defusing and Solving Customer Problems

lores_hr_cost_cutting_man_yell_phone_anger_unhappy_customer_service_amHere are some general guidelines on handling customers in tense situations:

  • Arrange to have no interruptions during your time with the customer.
  • Assume the customer is truthful.
  • Treat complaints as problem-solving sessions.
  • Let the customer talk in order to defuse some of the emotion.
  • Listen closely without interruption and gather enough information to be able to make a considered response.
  • Ask for clarification if the facts aren’t clear.
  • Ask how the customer would like the situation handled.
  • Provide options on how to resolve the problem.
  • Take the problem to the person who can fix it, or who needs to know.
  • Keep a log or journal of customer complaints to help spot trends.

The remaining customers can run the gamut from moderately annoying to extremely difficult, and although they are smaller in number, the time and energy they require can make them seem to outweigh all the others.

The first step to take when confronted with a difficult customer is to determine if the complaint is legitimate. Most of the time, it is. Many problems stem from a particular situation, for example, a rude salesperson, unsatisfactory customer service, a product defect that causes havoc in the buyer’s own business or a late delivery that caused the customer to miss a deadline.

In those instances, you apologize, do what you can to appease the customer, and take steps to correct the error and ensure it doesn’t happen again. At the same time, consider that the customer has done you a favor by highlighting a weakness in your operations or by calling attention to a problem employee.

If all goes well, you both end up satisfied and the customer stays with you.

But sometimes customers are simply annoying. When that’s the situation, you can choose between two paths:

  1. Determine that the customers are valuable enough to your company that it is worth the effort to try to satisfy them – even when the complaints aren’t legitimate – and to improve the relationships. This would be the case when the customers are those your company depends upon for long-term success.
  2. Sever the relationship altogether because the customers are so difficult that you question their value to your company. These are the buyers who remain difficult regardless of how much you try to appease them. In the end they actually can become obstacles to the smooth operation of your business.

Letting a customer go is a difficult decision and before you do that, you want to consider several factors:

Mitigating Circumstances: There could be an unapparent reason for a customer’s attitude. For example, the individual may be having financial difficulties, grieving, going through a divorce or working under a sudden change of management. If you can determine a reason behind the difficult attitude, you may be able to come up with a strategy that can salvage the relationship. If there appears to be no mitigating circumstance, consider the relationship in light of the following three factors.

Financial Effect:  If the customer is one of your major sources of revenue, determine how hard it would be to replace that income. Also consider whether the customer is a potential source of other valuable customers, as well as how much influence the individual has in the community and over other current buyers. Statistics suggest that one disgruntled customer tells seven people about his or her experience. The more influential your customer is the more people may hear about it and be swayed to switch to the competition. If, however, you think your business can handle the loss of this customer, end the relationship quickly and firmly. You and your employees will gain that much more time to tend to your other, less troublesome customers.

Operations Effect: If you personally have to deal with one of these difficult customers on a regular basis, consider how that might be affecting your ability to tend to the rest of your business and your employees. Constant and unsuccessful attempts to appease troublesome customers can distract you from your other responsibilities as a business owner.

Staff Effect: Your most intransigent customers can create employee burnout, low morale, and turnover. Having to deal regularly with an extremely difficult person can quickly send even the best sales personnel looking for other jobs. If a customer is abusing your employees, deal quickly with that problem or you may find performance spiraling downward and your payroll dwindling.

The best way to handle difficult customers is to put yourself in their shoes. Listen without arguing and get as much information as you can to understand them as individuals. Try to find ways to adjust to their needs when it is reasonable. But don’t hesitate to turn one loose if that solution is best for you, your staff and your business.

Save on Taxes with an Estate Freeze

lores_building_corporate_offices_entry_amEstate freezes are a handy estate planning tool that helps avoid taxes, primarily capital gains taxes that apply on the transfer of assets to beneficiaries at the death of the parent.

An estate freeze restructures the beneficial ownership of certain types of assets. As a result of the freeze, the value of the existing equity is fixed, while future growth is transferred through shares or a trust into the hands of the named beneficiaries. This usually limits the value of the parents’ estate to the value on the date of the estate freeze.

Tax liability is determined by fair market value of property at time of death. By implementing a freeze beforehand, the value of one’s estate that is subject to tax is reduced and the value of assets received by beneficiaries is maximized.

An estate freeze makes sense in cases where the value of estate assets is expected to appreciate. The most common form of estate freeze involves the transfer of estate property to a corporation, or the reorganization of an existing corporation.

It locks in the corporation’s current value, leaving it in the hands of the founders. Their children are brought in as the new owners and will reap the benefits of any future growth of the corporation.

Typically, when the corporation is created the original holders receive shares with a nominal value from $.01 to $1 each. Years down the road, when the founders want to pass on the operation of the business to their children, those shares are usually worth considerably more. Now assume the parents want to stop working and need money to finance their retirement but the beneficiaries may not have the money or want to take on high debt to acquire the stock.

Adding to the conundrum are the tax consequences. Because the shares will be sold to a related party, the Lifetime Capital Gains Exemption on qualified small business corporation shares is affected. The parent can claim the exemption, but the tax cost of the shares to the child is reduced by the amount claimed. As a result, the children may have to pay taxes if they sell the shares.

An estate freeze can solve both the financing and tax issues. The parents swap their voting shares for preferred shares with a redemption amount equal to the value of the company at the time of the swap.

Section 85 of the Income Tax Act allows the swap to be recognized at any value between the fair market value of the new preferred shares and the tax cost of the old voting shares. The exchange value that is chosen is normally one aimed at letting the lifetime exemption shelter the resulting capital gain from taxes.

Typically, the founders also receive new voting shares with no redemption value that are then sold to the children. Because all the value of the corporation lies in the preferred shares, the voting shares have only nominal value and can be sold to the children without significant tax consequences. If the children sell the shares, they can claim their own lifetime exemption.

The founders then redeem the preferred shares as they wish. The redemptions are financed by the profits of the business rather than money the children borrowed.

Redeeming the shares produces a taxable dividend added to the parents’ income. That reduces the capital gain on the redemption and any resulting capital loss can be used to offset other capital gains.

Estate freezes are complex, but can be advantageous. Talk to your accountant about this or other methods that can help minimize taxes in your estate.