The Ontario Superior Court recently ordered Toronto-based student travel firm S-Trip to pay a group of former staff $450,000 after misclassifying the workers as ‘volunteers’, when in reality they should have been categorized and compensated as ‘employees’. Photo credit: Twitter/S-Trip Are you part of an organization that relies on volunteers? Many not-for-profit corporations such […]
Employers must not solely rely on the self-interested decision making of their insurance companies when making very important employment decisions. One such decision is when the employment contract is “frustrated”. After a five-week trial in the Ontario Superior Court case of Baker v. Blue Cross, on Jun. 24, 2022 a Toronto jury granted the […]
Courts in Ontario and Nova Scotia have thus far tended to decline to deduct, while courts in BC, Alberta, and Saskatchewan have tended to deduct. Photo credit: The Canadian Press/Jason Franson In my assessment, the official expiration of deemed IDEL in Ontario triggers a domino effect in relation to several legal issues. One is […]
If and when the deemed IDEL ends it will be a game changer for employers, employees, and the courts in Ontario, as the detonator will be set for both parties to assess the viability of their ongoing employment relationship. Photo credit: Pexels/Sora Shimazaki As you may recall from my earlier articles, there is paid […]
Two recent divergent decisions regarding Alectra Utilities’ and FCA Canada’s ability to uphold mandatory vaccination policies in the workplace underscore the need for organizations in Ontario to re-examine and, if necessary, update their respective policies. Photo credit: Twitter/Alectra Utilities Labour arbitrators remain the frontline decision-makers regarding workplaces and how they balance the needs of […]
As a recent Ontario case involving a terminated dental hygienist demonstrates, employers that wish to put forth fraud allegations must provide incontrovertible evidence of falsification or be prepared to face the consequences of the court. Photo credit: Pexels/Anna Shvets Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967 is a recent wrongful dismissal case […]
Photo credit: Getty Images/Ryan Fletcher The case of Okano v. Cathay Pacific Airways (2022 BCSC 881) confirms that the negative impact of COVID-19 on certain industries does not alter the courts’ expectations on what is reasonable (the “how” of) when employees mitigate their damages – in this case, the airline industry. In Okano the […]
A recent Court of Appeal case involving a laid off Tim Hortons assistant manager failed to shed new light on whether pandemic-related layoffs or IDEL constitute constructive dismissal at common law. In Ontario employers and their counsel have been waiting for a decision from the Courts to provide guidance and some certainty on whether […]
Establishing a framework for similar scenarios in the future, the Ontario Superior Court recently dismissed a judicial review application challenging the implementation of McMaster University’s mandatory vaccination policy. Photo credit: McMaster University Recently in Michalski v. McMaster University the Ontario Superior Court of Justice dismissed a challenge to the Hamilton university’s mandatory vaccination policy by […]
A recent Ontario Court of Appeal workplace misconduct case involving a tap/slap on the buttocks of a female employee by a male manager yields interesting result, sets new precedent. Render v. ThyssenKrupp Elevator (Canada) Limited (2022 ONCA 310) is a recent Ontario Court of Appeal (“OCA”) that has set a new and surprising precedent. […]
The recent passing of the Working for Workers Act, 2022 and Pandemic and Emergency Preparedness Act, 2022 means certain Ontario employers will have to add and implement various changes in the coming months. Photo credit: Pexels/Cottonbro Working for Workers Act, 2022 First and further to my previous article last month, on April 7, 2022 […]
On Mar. 22, 2022, an Ontario arbitrator upheld the Toronto District School Board’s mandatory vaccination policy, maintaining it did not infringe section 7 of the Canadian Charter of Rights and Freedoms. Photo credit: The Canadian Press/Frank Gunn The Toronto District School Board (TDSB) and CUPE, Local 4400 case is the first arbitration award in Ontario […]
One change involves disclosure requirements around electronic monitoring of employees. Photo credit: Pexels/Thirdman As I have previously noted, the pandemic has had a significant impact on how and where we work. Prior to the pandemic remote work was the exception, not the rule. Following employers and employees needing to pivot to remote work during the […]
Amongst several other changes, Bill 88 would guarantee “gig workers” – such as Uber drivers and DoorDash delivery people – a minimum wage, tip protection, and dispute resolution rights. Photo credit: Pexels/Norma Mortensen On the heels of the passage of the Working for Workers Act, 2021, Ontario introduced Bill 88, Working for Workers Act, 2022 on February 28, 2022, […]
Photo credit: Government of Ontario What has changed? On Valentine’s Day 2022 many retailers, restauranteurs, and employers in the hospitality and tourism sectors hearts fluttered when the government of Ontario shared the decision to lift the following two public health measures if public health and health system indicators continue to improve effective March 1, 2022: […]
Ontario’s Minister of Labour, Training and Skills Development Monte McNaughton. Minister McNaughton introduced the Working for Workers Act, 2021 at the end of last year. The act, amongst other legislative changes, banned the use of non-compete agreements. Photo credit: The Canadian Press/Frank Gunn With the passing of Ontario’s Working for Workers Act, 2021 (“WWA”) on Dec. […]
Port of Hamilton, where vegetable oil refiner Bunge manufactures and ships its product. An arbitrator recently upheld the company’s workplace vaccination policy that does not allow alternatives to inoculation, such as frequent testing. Photo credit: HOPA Ports As we get reset to re-open under the Ontario government’s three-phased reopening plan commencing Jan. 31, 2022, […]
Photo credit: Calm for Business Given that we are in the fourth wave of the pandemic, greater expectations will be placed on employers to get their responses to the pandemic right. Meaning, employers are expected to be more than well familiar with and used to the occupational health and safety, and as applicable, public […]
One of the measures includes the closure of schools. Photo credit: CTV News Toronto So far in 2022 there are a number of COVID-19 response measures employers, businesses, and organizations alike in Ontario need to be aware of as we move forward. Current Phase of Our Roadmap to Reopening Effective Wednesday, Jan. 5, 2022 […]
The institution of mandatory vaccination policies in the workplace was perhaps the most talked about development in Ontario employment law this year. Photo credit: Canadian Lawyer Magazine The first three areas of employment law examined below have been much discussed throughout 2021; the last two areas involve new developments – the first on a […]
Just longer than the cycle for a lunar eclipse, the construction industry’s “open period” occurs under the Ontario Labour Relations Act (the “Act”) every three years for two months. Given that the majority of collective bargaining agreements (“CBAs”) in the construction industry expire on April 30, 2022, the upcoming “open period” will be from March […]
Minister of Labour, Training and Skills Development Monte McNaughton with the passed Act. Photo credit: Facebook/Monte McNaughton On Nov. 30, 2021, the Ontario government passed the Working for Workers Act (WWA) with Royal Assent expected to follow within the coming weeks. The WWA impacts a number of employment related areas and legislation, including but not […]
Photo credit: Pexels/Ekaterina Bolovtsova To date we don’t have a court decision on the merits of an employer’s vaccination policy nor a court or arbitration decision addressing an employee’s termination for non-compliance under such a policy. What we have are four court injunction decisions stemming from unionized employees attempting to prevent application of the […]
Beyond it being Remembrance Day, November 11, 2021 is memorable for the fact that Arbitrator John Stout was the first Ontario arbitrator to allow a grievance challenging an employer’s mandatory vaccination and disclosure policy (“MVD Policy”). This case involved the Power Workers’ Union (the “PWU”) and the Electrical Safety Authority (the “Employer”). Of import, in […]
Ontario’s Ministry of Labour, Training and Skills Development recently introduced legislation that if passed would, among other things, force employers with over 25 employees to establish “right to disconnect” policies, such as no emails before or after work hours. But are the changes really necessary? Photo credit: Pexels/William Fortunato The COVID-19 pandemic has impacted […]
Ontario’s enhanced vaccination certificates with scannable QR codes have officially launched. While such codes may renew privacy debates, their intended purpose is to provide an easier and more convenient process for businesses to verify patrons’ vaccination status, while protecting their privacy. Why is it “enhanced”? The QR code is built on the “SMART Health Card […]
Photo credit: Healium At this juncture, the temporary pandemic rules under the regulation to the Ontario Employment Standards Act, 2000 (ESA) continue to be in place until January 1, 2022 for unpaid IDEL (Infectious Disease Emergency Leave) through the most recent extension of the “COVID-19 period”, and paid Ontario COVID-19 Worker Income Benefit to December […]
Ontario’s Attorney General Doug Downey, the minister responsible for overseeing the Ontario Human Rights Commission (OHRC). On the day that the province’s vaccine passport system came into effect, OHRC released a statement in support of the system’s implementation in limited circumstances. Photo credit: Twitter/Douglas Downey The Commission asserts that employers must accommodate people who […]
A customer presents proof of vaccination to enter a restaurant. Photo credit: New York Times/Victor Blue What might have been missed in the election fervor is that on September 14, 2021 the Ontario government released the regulations (Reg 645/21) and guidance for businesses and organizations to support them in implementing proof of vaccination requirements, […]
Photo credit: Pexels/Anna Shvets During the pandemic temporary employment standards measures were implemented that temporarily avoided the complex and difficult subject of employee constructive dismissal claims. The complexity and difficulty arises from the fact that a constructive dismissal is made out based on two steps. First, the employer must unilaterally make a significant change […]
Photo credit: Rose Magazine On September 1, 2021, to confront the health and safety challenges arising from the Delta-driven fourth wave of the COVID-19, the Ontario government created new rules effective September 22 limiting access to certain public indoor business settings assessed to have a higher-risk of transmission because face coverings cannot always be […]
Sun Life Financial Inc’s Canadian head office in Waterloo, Ontario. On August 17, Sun Life informed its 12,000 Canadian employees that they need to be fully vaccinated against COVID-19 to return to their offices in Toronto, Montreal, and Waterloo. Sun Life is one of a plethora of employers across North America that have recently come […]
The provincial government recently released new guidelines around testing and self-isolation for those potentially exposed to COVID-19, with different rules for the vaccinated and unvaccinated. Photo credit: Getty/Forbes Under the Supporting Ontario’s Recovery Act Ontario workers, employers, volunteers, non-profits and other organizations who make an “honest effort” to follow public health advice, public health guidance […]
Photo credit: Canadian Lawyer Magazine Under the Ontario Health and Safety Act (OHSA) employers must take every precaution reasonable in the circumstances to protect the health and safety of workers – including protecting workers from hazards posed by infectious diseases like COVID-19. As part of fulfilling this obligation, Ontario employers must already have in place their […]
Photo credit: Pexels/Sora Shimazaki In a previous article I wrote that so far there was no traction for the argument that an additional factor – a COVID-bump – should be considered when assessing reasonable notice entitlements in Ontario. Is the Court changing its tune? What is a COVID-bump? A COVID-bump is the argued for (by […]
Photo credit: Pexels/Tima Miroshnichenko Recall the passing of Supporting Ontario’s Recovery Act, 2020 that provided protection from COVID-19 related liabilities to Ontarians – including employers and businesses – who act within its parameters so that: (a) no proceedings may be brought or maintained against them that relate to COVID-19 related liability causes of action, regardless […]
On June 30 Ontario moves to Step 2 of its phased reopening plan. Given that the province-wide vaccination rate has surpassed established targets, can employers impose mandatory vaccination policies as part of their roadmaps to reopen?
There are two recent decisions of the Ontario Superior Court that contradict one another on the issue of whether placing an employee on IDEL (Infectious Disease Emergency Leave) amounts to common law constructive dismissal.
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.