Short answer: Very little in law in Ontario. This is regardless of such considerations as: the timing of an employee’s termination prior to the pandemic, during, or due to the pandemic; and the actual time it takes an employee to find new employment. This is not to say that terminations during the pandemic, depending on the individual circumstances, may not have a negative public relations or brand impact, but that is another issue.
In re-examining your workplace, consider your workplace realities and what is and will be important to address and what you should be prepared to deal with.
In doing so, consider what your employees’ current terms and conditions of employment are, relative to what they should be going forward to protect your business, reduce potential liabilities, and increase inclusion.
Given our limited social activities during the pandemic, I’d hazard to guess Ontarians are avid consumers of news and social media more than ever. Is or can this quote still be true? Or true within limits given the ease, speed, and vast distribution of a media and social media messages with the use of cancel culture on line?
On Nov. 20, 2020, the Government of Ontario Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 came into force. Under Schedule 1 of the Act retroactive protection against civil liability from March 17, 2020 has expressly been provided to any ”person” who makes a “good faith effort” to follow public health guidance and laws relating to COVID-19.
Where are we at so far in 2021?
As likely everyone is aware, when Ontario Regulation 780/20 came into effect on Dec. 26, 2020, Ontario entered the “Grey Zone” – aka our second province-wide lockdown. Southern Ontario (27 regions including Niagara) for 28-days and Northern Ontario for 14-days (7 regions) if all goes to plan.
With the growing concerns regarding the recent uptick in cases, the Ontario Government passed the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, Ontario Regulation 364/20 “Rules for Areas in Stage 3” on Friday, September 25, 2020 effective Saturday, September 26, 2020 at 12:01 am. Hand in hand with these “new rules” Ontario’s Ministry of Health through the province’s Chief Medical Officer released a screening “recommendation” along with a “COVID-19 Screening Tool for Workplaces (Business and Organizations)”.
As you recall, when the deemed termination provisions of the Ontario Employment Standards Act, 2000 (“ESA”) related to temporary leaves of absences caused by the March 17, 2020 declared state of emergency loomed on the horizon, an important new regulation that materially amended the ESA was passed – the Infectious Disease Emergency Leave (“IDEL”) Regulation.
This Regulation applied to non-unionized workplaces retroactively and created the concept of the “COVID-19 Period”. The COVOD Period ran from March 1, 2020 until six weeks after the state of emergency is extinguished or Sept. 4, 2020 – until Sept. 3, 2020.
Labour costs in Canada increased to 112.10 points in the first quarter of 2020 from 110.94 points in the fourth quarter of 2019. Added to this are the losses in revenue and increased costs of doing – or not doing business – during the COVID-19 pandemic and the declared state of emergency.
COVID-19 and the province’s Declared State of Emergency (in place currently until June 30, 2020) has caused the rules of employment law to be in a state of flux, with business and employment relationships changing how they operate. There are, and will be, many unknowns as we move forward. Some certainty have been provided by amendments to employment legislation and the enactment of new regulations providing new standards during or related to the Declared State of Emergency. Such regulations are not themselves static. They have been passed, updated and will likely be updated moving forward as the economy re-opens. One is Regulation 82/20 – Closure of Places of Non-Essential Businesses passed on May 18, 2019, which is reviewed in this article.
While we are being reassured that the Ontario and Federal governments have implemented measures to protect Ontarians from COVID-19 as well as to assist with flatten the epidemic (EPI) curve of COVID-19, to do so truly requires every Canadian to conduct themselves in a socially conscious and responsible manner. This can be easier said than done – especially given economic considerations at play.
March 8 is International Women’s Day a global day celebrating the contributions of women and renew our efforts of achieving gender equality. This year’s campaign theme is #EachforEqual.
The terms “gender equality” and “gender equity” are sometimes used interchangeably, but there are very significant differences between them. Where “gender equality” focuses on providing the same starting circumstances for everyone no matter where an individual is on the gender spectrum between male and female, the goal of “gender equity” is to provide all genders with the same end results (that is, to truly amount to equality between all genders). That is why gender equity sets the stage for gender equality.
Are you breaching your employees’ privacy expectations when you use their personal contact, health information or emergency contact information when you conduct employee wellness checks at home?
We have been taught under PIPEDA (recall the Personal Information Protection and Electronic Documents Act) that you must generally obtain an individual’s consent when you collect, use or disclose an employee’s personal information – and such personal information must only be used by an employer regulated by PIPEDA or who adopted a policy that follows PIPEDA’s principles for the purposes for which it was collected. If you are going to use it for another purpose, you must obtain consent again.
When I was at a hearing the other day an organizational people leader present loudly declared: “Everyone can go get their own lunches today, I am not dealing with feeding you crazy people”. She was referring to me. I have Celiac Disease and was cross-contaminated the day prior. “Crazy” means not “normal,” in a “bad” way. In this one thoughtless statement this “leader” both stigmatized my disease and mental illness. Insulting someone by using the word “crazy” should not being occurring in an awakened society.
The Novel Coronavirus virus involves a respiratory infection closely related to SARS and MERS and has been declared a global health emergency by WHO. Researchers are trying to work out the ways that it is transmitted and employers are wondering how the virus may affect their workplaces. This article provides some general information and reminds employers to educate their employees and keep up to date on the latest developments surrounding this virus.
In Canada, federally regulated public sector employees are protected from reprisals from their employers under the Public Servants Disclosure Protection Act when they make in good faith disclosures of internal incidents or practices to their supervisors, or others “further up the ladder”, even if they do not make a corresponding disclosure to law enforcement officials.
Master and Servant In making this award, the Court considered many of the recent wrongful dismissal Ontario Court of Appeal decisions, including the previously discussed decision in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512 (CanLII), which re-established that absent “exceptional circumstances” there is generally a 24-month cap on reasonable notice periods.
Being brash, outspoken, opinionated and never afraid to offend is an outmoded communication style when it is not balanced by, and compliant with codes of conduct, anti-violence, anti-harassment and anti-discrimination policies or parties’ legal obligations.
In the professional sports context, the fact that the employees or volunteers are providing the service of “entertainment” or “coaching” in a public facility such as a sports arena or stadium does not permanently place them in the pocket; they will be required to fully defend their comments and actions or be at risk of getting sacked.
All Ontario employers by now should be well aware of and familiar with The Accessibility for Ontarians with Disabilities Act, 2005 and its regulations (the “AODA”) as many of its requirements, or standards, should already be in place in your workplaces.
The AODA’s purpose is to “develop, implement, and enforce standards for accessibility” related to employment (as well as goods, services, facilities, accommodation, and buildings) by 2025.
Yes! Certainty in the terms and conditions of an employee’s employment contract is an excellent way to avoid potential conflict and reduce potential liability and “costs” (i.e., lost opportunity costs; reduced productivity from decreased morale; increased absenteeism, turnover, recruitment and training costs; and litigation costs) now for the future. Consider it everyone’s playbook should conflict arise or the employment relationship breaks down.
On Oct. 23, 2019, Ontario’s Ministry of Attorney General announced significant changes to its “alternative” litigation procedures in order to make civil litigation more affordable and thus accessible by reducing costs and delays as well as increasing the efficient use of the parties’ and the court’s resources and time. The changes will be in effect as of Jan. 1, 2020 and should decrease the number of actions brought under the ordinary litigation procedure before our Divisional Court. Depending on the dollar value of a claim, some litigants will have the option to elect between these two alternative court procedures, which are not mutually exclusive.
With Thanksgiving behind us, we are turning our minds to the Christmas holidays and closing out the 2019 calendar year. As an employer, do you provide holiday or annual bonuses? If yes – the Ontario Court of Appeal released a further decision to its decision in Manastersky v. Royal Bank of Canada, 2019 ONCA 609 that I discussed in an earlier article. The most recent OCA decision on bonuses is Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679.
Where the Manastersky decision taught us that a well-crafted bonus plan can insulate an employer from liability in respect of bonus plan payout to former employees, the Andros decision underscores what happens when your employment contracts are not well-crafted.
The contents of a job applicant’s resume are – and should always be – the starting point in your company’s recruitment process.
Few applicants know or care that lying on a resume constitutes cause for the termination of their employment when it is discovered if it means they get the job. The “cause” arises from the fact that all employment relationships are built on trust. If employment is offered based on employee misrepresentations, the trust necessary for continued employment is breached and a serious character flaw is revealed that also undermines the necessary bonds of trust.
In the employment context bonuses can either be discretionary or non-discretionary.
A discretionary bonus is completely unexpected. Unexpected as to timing, dollar value and kind of performance needed to receive one. They have no established formula, are not part of an employee’s contract, there is no expectation to receive one regularly and as such it does not constitute either a meaningful or expected part of an employee’s total compensation package.
Employees may have access to information that is confidential or personal about policies, decisions or other persons in or connected to their workplaces that are not intended for public consumption.
In light of this access, proactive employers have confidentiality and other nondisclosure covenants in their employment contracts. But what if an employee breaches such a covenant and goes to the media or vents their employment frustrations on social media resulting in defamatory conduct against the employer, its employees or its customers?
While apparently not litigated in Dussault v. Imperial Oil Ltd.,  O.J. 2800, discussed in my last article, the Ontario Court of Appeal (OCA) in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512 (CanLII) has re-established that absent “exceptional circumstances” there is generally a 24-month cap on reasonable notice periods.
In doing so the OCA overturned and reduced the trial judge’s award of 30 months of reasonable notice to 24 for a 62-year old senior executive with 37 years of service, a person whom under the recent line of cases the trial judge noted would have been awarded 36 months if he asked for it. The court also reversed the recent line of cases that broke through the general 24-month cap that had been in place for decades – and which some touted as demonstrating that the law had evolved to eliminate this general cap.
What happens to employees when a company sells its business but neither party wants to fully take on all of the liabilities associated with the current employees?
This often happens in relation to the reasonable and statutory notice of employees “bag” without the parties truly knowing “who” should be left holding this bag. With long serving and higher-level employees, this bag can be quite hefty.
As we are aware, family owned and operated businesses involve two or more family members having the majority of ownership and control over a business. Such business likely are the oldest form of business and sources of workplace conflict given the intertwining of work lives, personal lives and family dynamics.
In my article concerning clearing the air on cannabis use in the workplace I outlined in general terms the limits on employers’ duty to accommodate employees’ medical use of cannabis relative to the workplace as being the duty to accommodate “to the point of undue hardship”. This duty is established by the Human Rights Code under the protected ground of disability.
What does this duty of accommodation entail? How do employers establish where the planes of “accommodation” and “the point of undue hardship” intersect? Further, how does this duty intersect with Ontario employers’ general duty to provide to each of their employees a safe work environment free from all recognized hazards under the Occupational Health and Safety Act?
In Ontario employers who either fail to take allegations of violence and harassment seriously or deal with them in good faith, expose themselves to significant legal liability given their multifaceted obligations to employees under the Occupational Health and Safety Act (“OHSA”), the Ontario Human Rights Code and the common law.
Essentially this means that employers who fail to adequately respond to, investigate, prevent or remedy harassment face increasing damage awards and statutory fines on top of exposure to negative PR and brand damage.
As of late, one of the most varied pieces of employment legislation in Ontario is the Employment Standards Act (“ESA”). Such ongoing changes have led to a lot of confusion for employers on what their legal obligations are and what their policies and practices should be. This is particularly the case in relation to “Personal Emergency Leave” (PEL) days and the fact that the 2019 amendments to the ESA have reduced rather than increased employee statutory entitlements.
Notwithstanding that recreational marijuana has been legal in Canada for seven months now and medical cannabis, alcohol and other intoxicants a lot longer, employers still have many fears and misconceptions about how its employees’ use of marijuana both at work and at home may negatively impact their workplaces. This article addresses many of these concerns so as to clear the air on employees use of marijuana as it relates to the workplace as an ounce of prevention equals a pound of cure.