Employment & Labour Law 

Few events can more dramatically impact the way your business operates than the certification of a union.  In its simplest terms, a union certification represents the end of an employer’s 1:1 relationship with its employees, and the start of a collective bargaining relationship in which the union is the voice of employees.

Understanding the way that unions acquire bargaining rights and become certified under the Ontario Labour Relations Act is the first step to effectively managing and responding to organizing efforts in the workplace.

Union Organizing Drives

The goal of an organizing drive is for the union to be certified by the Ontario Labour Relations Board (“the Board”) as the exclusive bargaining agent for all employees in a specified bargaining unit.  In many cases, that bargaining unit is defined as all employees of a particular employer, often within a particular municipality, and will typically identify a number of exclusions.  Most exclusions are determined by the Labour Relations Act, as managers, supervisors and persons above those ranks are excluded, along with persons employed in confidential labour relations capacities.  In general, both unions and the Board favour “all employee” bargaining units, rather than fragmenting a workforce into smaller bargaining units.

In order to be certified as the exclusive bargaining agent for a particular bargaining unit, the union must complete a series of steps set out under the Labour Relations Act.  A drive to collect membership cards is the first step of that certification process.

i. Membership Cards

A union’s first goal in an organizing drive is usually to collect as many signed union membership cards as possible from the employees in the applicable bargaining unit.  Each membership card is signed and dated by an employee and states that the employee wishes to be represented by the union in question.  The union must file signed cards on behalf of at least 40% of the members in the proposed bargaining unit along with an application for certification to the Board.

ii. Application for Certification

Along with the membership cards, the union must file an application to the Board setting out a host of information, including the description of the proposed bargaining unit, the number of employees that the union believes to be employed in that unit, as well as details as to how the Board should conduct a secret-ballot vote of the employees.  Importantly, the membership cards are confidential; at no time will the employer be informed as to the identity of the employees who signed cards.

The application must be served on the employer and filed with Board, and in turn triggers an obligation on the employer to file a response to the application within two (2) business days.  In many cases, an application will be served and filed at the end of day Friday, and an employer will be obligated to respond by the end of the following Tuesday.  The employer’s response must include a detailed list of employees in the proposed bargaining unit (which allows the Board to assess whether the 40% threshold has been met), identify whether the employer agrees or disagrees with the proposed bargaining unit description (and counter-propose a different description if in disagreement), and respond to the union’s proposals on a secret-ballot vote.

iii. Secret-Ballot Vote

The Board reviews the application and response to determine whether the application will proceed, including whether the bargaining unit proposed by the union could be appropriate for collective bargaining, and whether the application is supported by at least 40% of the employees in the proposed unit.  If the statutory criteria are met, the Board will order a vote of all affected employees to occur on the fifth day following the date on which the application was filed.  For example, if an application is filed on a Friday, the Board will typically hold a vote of all affected employees on the following Friday.  This is a very short window of time should an employer be caught flat-footed and unaware of the union organizing campaign!

iv. Success or Failure

The outcome of the vote is determined by a simple majority (50%+1) of those who vote.  For example, if a proposed bargaining unit includes 100 employees, but only 10 show up to vote, if 6 or more of those employees vote in favour of the union, then the union will be certified to represent all 100 employees.  Accordingly, it is critical that as many employees cast a ballot as possible to ensure that the majority of employees determine whether the union’s application succeeds or fails.

Please note that the construction sector in Ontario has specific procedures and rules that differ from the overview addressed above, and include an automatic certification procedure that can result in certification without a vote of employees.  Should you have questions regarding the construction sector we encourage you to contact us directly.

WEBINAR October 17, 2018:

Click here to register for Dentons’ live webinar on October 17, 2018 for further details on union organizing drives, an employer’s rights and obligations during such drives, and potential changes that may be made by the Ford government.  The Webinar will also feature a Q & A discussion.

As part of the overhaul of Ontario’s labour and employment legislation, effective January 1, 2018, employees are now entitled to a new job-protected leave of absence – sexual or domestic violence leave. This statutory leave of absence is part of the government’s effort to end gender-based violence as it requires employers to accommodate eligible employees who require time off for reasons of sexual or domestic violence.

Eligibility:

In order to be eligible for this leave of absence, an employee must have been employed for at least 13 consecutive weeks, and the employee or the employee’s child must have experienced, or been threatened, with sexual or domestic violence. The leave must also be taken for a specific limited purpose, including:  to seek medical attention, to access victim services, to have psychological or other professional counselling, to move temporarily or permanently, or to seek legal or law enforcement assistance.

Length of the Leave of Absence:

There are two lengths of sexual or domestic violence leave which an eligible employee may choose to take within a calendar year: a 10-day period and a 15-week period. The 10-day entitlement may be taken a day (or a part of a day) at a time, and the 15-week entitlement does not have to be taken continuously. Any part of a week taken will be deemed to be one full week. Employees cannot carry over any unused leave time to the following calendar year.

Employer Notification:

An employee must advise his or her employer of his/her intention to use the sexual or domestic violence leave.  If this is not possible, notice must be given as soon as possible after the leave is started. If the employee intends to use his or her 10-day entitlement, notice does not need to be in writing. However, notice that the employee will be taking leave from the 15-week entitlement must be in writing.

Paid/Unpaid Leave:

Employers must pay eligible employees for the first five days of their sexual or domestic violence leave, whether the employee takes leave from the 10-day entitlement or the 15-week entitlement. The remaining days are unpaid. Employers may request evidence “reasonable in the circumstances” of the employee’s entitlement to the leave.  What is reasonable in the circumstances will depend on whether there is a pattern of absences, the duration of the leave, whether any evidence is available, and the cost of the evidence.

Webinar September 19, 2018:

Click here to register for  Dentons’ live webinar on September 19, 2018 for further details on the new sexual or domestic violence leave, including how to calculate time-off and how to calculate pay. The webinar will also feature a Q&A discussion.

Over the objections of a company’s employment lawyer, an Ontario court has permitted an employee to refer, in her Statement of Claim for constructive dismissal and bad faith, to the “communications and conduct” of the company’s lawyer in respect of a sexual harassment investigation.

The employee made sexual harassment and bullying allegations against a coworker. The employer investigated and concluded, without speaking with the employee, that the allegations were not substantiated. During this period, the employee was placed on a Performance Improvement Plan.

The employee eventually retained counsel who requested a severance package. The employer then also retained counsel. For a few months, the lawyers communicated by phone and correspondence. They discussed the investigation. The employee’s counsel urged the company to conduct a new or more thorough investigation, which the employer did. The employee then started her constructive dismissal lawsuit and included, in some paragraphs of her Statement of Claim, reference to some of counsel’s discussions and conduct.

The company moved to strike those paragraphs from the Statement of Claim on the basis that the discussions between counsel were “without prejudice” settlement discussions. The Master refused to strike the paragraphs. She held that the discussions and conduct of the company’s lawyer with respect to the harassment investigation did not relate to a “litigious dispute” but rather to the company’s statutory obligation under the Occupational Health and Safety Act to investigate the sexual harassment allegations. The sexual harassment investigation report itself was not privileged. Counsel’s conduct during the sexual harassment investigation was “highly relevant and both counsel must have understood its relevance should litigation ensue”. Finally, although the outcome of negotiations between counsel may have led to a severance settlement, and the employer’s lawyer told the employee’s lawyer that she wished to engage in without prejudice settlement discussions prior to sharing any information with him, the communications in relation to the investigation and the PIP were directly relevant to the employee’s claim for constructive dismissal and bad faith.

In the result, the communications between counsel regarding the sexual harassment investigation and the PIP were not “settlement privileged” and were not struck from the employee’s Statement of Claim.

Clayton v. SPS Commerce Canada Ltd., 2018 ONSC 5017 (CanLII)

Privacy and data protection concerns are at an all time high. With tech giants under scrutiny for large-scale privacy breaches, much of the recent media attention has focused on companies’ handling of client or consumer personal information. However, looming equally large are concerns regarding employers’ handling (and mishandling) of employee personal information.

Which Privacy Laws Apply to your Workplace?

In Canada, the privacy law landscape is relatively new, but rapidly evolving. In 2000, the Personal Information Protection and Electronic Documents Act (“PIPEDA”) was enacted in order to regulate private sector collection, use and disclosure of personal information in the course of commercial activity. However, PIPEDA has limited application in the employment context as it only applies to federally regulated employers.

British Columba, Alberta and Quebec have enacted privacy legislation for provincially regulated, private sector employers.  However, there is currently no equivalent legislation in Ontario

What have the Courts Said?

In the absence of any privacy legislation that applies to private sector employers in Ontario, the courts have frequently addressed the issue of privacy in the workplace. In a landmark 2012 case, Jones v. Tsige^[1], the Ontario Court of Appeal confirmed the existence of the tort of “intrusion upon seclusion”, or invasion of privacy, in Ontario. “Intrusion upon seclusion” can arise as a result of an intrusion into an individual’s highly sensitive information, including financial or health records, sexual practices and sexual orientation, employment information, and diary or private correspondence. The implication is that employees in Ontario are entitled to a “reasonable expectation of privacy” even if they are using employer-provided technology. Unsurprisingly, there have been a number of cases in recent years in which employees have claimed “intrusion upon seclusion” in respect of personal employee information.

Additionally, in the unionized context, some arbitrators have recognized various workplace privacy rights, including drug and alcohol testing, employee surveillance and monitoring, and searches of employee property, although many of these decisions have referenced a collective agreement which specifically addresses these protections.

Best Practices

As federal and provincial privacy legislation and the common law continue to develop in this area, employers can follow a few best practices in order to minimize the risk of privacy breaches:

1. Implement a detailed privacy policy that clearly defines privacy expectations (e.g. an employer’s right to monitor the use of company email) and ensure that the privacy policy is applied consistently. While provincially regulated employers in Ontario are not required to abide by PIPEDA, the principles outlined in PIPEDA may provide a useful guide for drafting privacy policies.
2. Do not disclose any personal employee information without first securing the employee’s permission, unless the disclosure is for the purposes of complying with a court order or government mandate.
3. Limit access to personal employee information to authorized staff.
4. Ensure that personal employee information is stored securely.

What’s Coming up Next?

Earlier this year, it seemed that provincial privacy legislation was on the horizon for Ontario, when Bill 14, the Personal Information Protect Act, was introduced at a first reading on March 21, 2018. While Bill 14 quickly passed second reading on March 22, 2018 and was referred to the Standing Committee on Justice Policy, it was not enacted prior to the provincial election in June and died on the Order Paper.

Bill 14 mirrored PIPEDA in many respects, however it included specific provisions which would regulate the handling of employee personal information by provincially regulated employers in Ontario. Bill 14 also granted specific enforcement powers to the Information and Privacy Commissioner of Ontario to initiate compliance investigations and audits in the private sector and conduct inquiries and make orders regarding privacy complaints.

While it is yet to be seen whether the Conservative government will re-introduce Bill 14, it is likely that Ontario will enact provincial privacy legislation in the future, as privacy and data protection concerns gain increasing prominence in the workplace. We will be following the development of any potential legislation closely and will publish any updates.

^{[1] 2012 ONCA 32.}

The hype around the legalization of marijuana in Canada is becoming a reality. On June 20, 2018, Prime Minister Trudeau announced the legalization of recreational marijuana effective October 17, 2018, making Canada the first G7 country to legalize marijuana for recreational use. According to Health Canada, the use of marijuana in Canada has increased in recent years.

While the legalization of marijuana has been highly anticipated, employers must ensure that they are prepared for the transition. This involves examining workplace policies to address the use and influence on workers of recreational marijuana in the workplace.

This leads to important questions: do employees now have an absolute right to use marijuana in the workplace, and are employers bound to let them do so?

The Human Rights Tribunal of Ontario (HRTO) rendered a decision earlier this year regarding the use of medical marijuana in the workplace, in the case of Aitchison v L & L Painting and Decorating Ltd.  Mr. Aitchison worked as a seasonal painter of high-rise buildings, and used marijuana to help cope with this chronic neck and back pain, but never raised the issue of accommodation with his employer. In June 2015, Mr. Aitchison was working on a high-rise building and was observed smoking marijuana on a swing set at the 37th floor. Mr. Aitchison was subsequently dismissed for breaching the employer’s “zero tolerance” smoking policy. Mr. Aitchison contested the termination on the grounds of the employer’s unwillingness to accommodate. There were a number of considerations that weighed in favour of the employer, which were crucial to the decision. The HRTO decided that Mr. Aitchison would never have been prescribed medical marijuana for use at work had his treating physician been aware of the safety-sensitive nature of his job. Moreover, accommodating Mr. Aitchison would have placed an undue hardship on the employer given the safety-sensitive nature of the work he performed. Finally, Mr. Aitchison was aware of the zero-tolerance policy when he breached it. The Tribunal therefore held that the workplace policy was reasonable and non-discriminatory.

The decision confirmed that employees do not have an absolute right to use marijuana, medical or otherwise, in the workplace, and employers still have the right to implement policies, so long as they consider their duties regarding accommodation under the Ontario Human Rights Code.

The legalization of recreational marijuana will not give employees the right to freely use marijuana in the workplace or to be under its influence. Employees are still expected to show up to work sober and to be able to safely complete their assigned tasks.  Where the use of marijuana has an adverse impact on job performance, employees may still be subject to disciplinary measures.

Want to know more? Please feel free to contact Matthew Curtis or any other team member in our Labour and Employment group.

This article was co-authored by Daniela Acevedo, a summer student in the Toronto office.

Over the past 15 years under a majority liberal government, workplaces in Ontario saw many employment and labour law reforms. Most recently, the liberal government introduced Bill 148 which made significant changes to the Employment Standards Act, 2000 and the Labour Relations Act, 1995, among others.

When Ontario went to the polls on June 7^th, voters elected a PC majority government.  Given this result, Ontarians can expect to see many more changes to employment and labour laws, including changes and rollbacks to those laws introduced under Bill 148.  But, what does Doug Ford leading a PC majority government mean for workplaces in Ontario?

As we await the Throne Speech setting out the government’s priorities, it remains unclear how the new PC government will proceed with its employment and labour agenda.

What is certain, however, is Doug Ford’s promise not to follow through with the Liberals’ planned increase to the minimum wage rate, which is set to increase to $15.00 per hour on January 1, 2019.  The PC government will freeze minimum wage at its current rate of $14.00 per hour. This may be history repeating itself after the PC government previously froze minimum wage between 1996 and 2003.

Although Doug Ford has weighed in on freezing minimum wage, he has yet to weigh in on any other employment and labour reforms. Uncertainty will remain until the premier-designate takes office.

Ontarians may also see changes to the Pay Transparency Act, given that the PC government voted against this legislation during the last legislative session.  The Pay Transparency Act was introduced by the liberals to increase transparency in hiring processes and to implement pay disclosure measures.  The legislation is to come into effect on January 1, 2019, until further notice by the PC majority.

Stay tuned for further updates.

We have reported before on the case of Wayne Talos and the Grand Erie District School Board. Mr. Talos was a teacher who chose to continue working past the age of 65, but was denied further benefit coverage due to his age.

Following a lengthy hearing, the Human Rights Tribunal ruled this month that the provision of the Ontario Human Rights Code which permits employers to cease benefit coverage at age 65 is unconstitutional because it violates the equality rights in the Canadian Charter of Rights and Freedoms.

During the hearing the Tribunal heard from various economists, actuaries and other expert witnesses on the sustainability of benefit plans if health, dental and life insurance benefits are to be extended to employees aged 65 and older. The Tribunal concluded that it is not “cost-prohibitive” to continue benefits. In other words, the Tribunal ruled that it is financially sustainable to include employees aged 65 and older in plans that provide health care, dental and modified life insurance benefits.

It remains to be seen whether the decision will be appealed. The Attorney General of Ontario had intervened in the case and submitted that the increased cost of providing benefits to older workers will either significantly increase the cost of benefits or, alternatively, will result in a significant reduction in overall benefits provided to all employees.

A remedy was not ordered by the Tribunal. Instead, the Tribunal ordered the parties to either engage in mediation or to return for a hearing on the remedial order.

The Tribunal assumed that 5 to10% of the School Board’s workforce is 65 or over when calculating the significance of the increased costs. One wonders whether more employees over age 65 will choose to work if benefits are now available, thereby further increasing the benefit costs.

We will update you with further information about this significant decision.

Wayne (Steve) Talos v. Grand Erie District School Board, 2018 HRTO 680

As you are aware, Bill 148 made substantial changes to the Employment Standards Act, 2000 (“ESA”) that took effect on January 1, 2018.  Among those changes was a new formula for calculating public holiday pay.  This new formula required employers to calculate public holiday pay based on the regular wages earned in the pay period before the public holiday, divided by the number of days the employee worked in that pay period.

In a surprising turn of events, the Ontario government announced on May 7, 2018 that it will be reviewing the public holiday provisions of the ESA. The Ministry of Labour will conduct this review in 2018 and interested parties can provide submissions on the Public Holiday Pay Review to exemptions.review@ontario.ca.

More surprising—the government has also enacted a new regulation, Ontario Regulation 375/18, which reinstates, on an interim basis, the old public holiday pay formula for all employers.  As a result, effective July 1, 2018, public holiday pay will be calculated under the old public holiday pay formula as follows:

Public holiday pay is equal to the total amount of the regular wages and vacation pay earned in the 4 weeks before the work week in which the public holiday occurred, divided by 20.

Ontario Regulation 375/18 is a temporary measure while the Public Holiday Pay Review occurs, which means the public holiday pay formula could change again after the Public Holiday Pay Review is complete.

To read Ontario Regulation 375/18, click here: https://www.ontario.ca/laws/regulation/r18375.

For employers who have updated their public holiday policies to reflect the new formula under Bill 148, you will need to revisit these updated policies (or simply revert to your old public holiday policies) in preparation for July 1, 2018. Additionally, employers who have implemented the new public holiday pay formula into their human resources information systems or payroll systems will need to ensure these systems are changed back to the old public holiday pay formula come July 1, 2018.

Start: February 14, 2018, 12:00 PM EST
End: February 14, 2018, 1:00 PM EST

This session is only available via webinar

2018 has arrived with a roar as workplaces across Canada grapple with significant changes to the country’s workplace laws.

Join us for a complimentary 1 hour webinar where we’ll highlight the changes you need to know about and identify the trends that we expect to impact your workplace in 2018.

Topics will include:

• A roundup of the big changes to Canada’s workplace legislation
• #MeToo – How to effectively deal with sexual harassment in today’s workplace
• The coming legalization of marijuana and its impact on the workplace
• Transgender in the workplace: a practical guide

Register now

CPD/CLE Accreditation

LSBC: This session will be registered for 1 hour of CPD credit with the Law Society of British Columbia.
LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.
Barreau du Québec: This program will allow participants to earn 1 CLE hour with the Barreau du Québec.

Questions

Please contact Carla Vasquez at carla.vasquez@dentons.com or +1 416 361 2377.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

A recent case from the Ontario Superior Court of Justice may cause some employers to reconsider the scope and application of their non-competition covenants. In Ceridian Dayforce Corporation v. Daniel Wright, 2017 ONSC 6763, the Plaintiff employer brought a summary judgment motion for a declaration that the non-compete clause in its former employee’s employment contract was binding and enforceable.

The Judge summarized the key provisions of the non-compete provisions as follows:

1. The non-competition period, defined as the “Restricted Period” means the period up to 12 months from the date the employee ceases to be employed by the Company as determined by the Company in its sole unfettered discretion, provided that the Company informs the Employee of the length of the period within 5 business days of the Employee ceasing to be employed by the Company.
2. The Employee shall not, “directly or indirectly provide services, in any capacity, whether as an employee, consultant, independent contractor, owner, or otherwise, to any person or entity that provides products or services or is otherwise engaged in any business competitive with the business carried on by the Company or any of its subsidiaries or affiliates at the time of his termination (a “Competitive Business”) within North America”.
3. The Employee shall not “be concerned with or interested in or lend money to, guarantee the debts or obligations of or permit his name to be used by any person or persons, firm, association, syndicate, company or corporation engaged in or concerned with or interested in any Competitive Business within North America”.
4. Nothing restricts the Employee from holding less than 1% of the issued and outstanding shares of any publicly traded corporation.
5. During the Restricted Period, the Company is to pay the Employee his or her base salary, less applicable deductions.

In striking the clause down, the Judge ruled that the non-compete was overly broad for a number of reasons, the most important being that it prevented the employee from providing services in any capacity to any competitive business. To make her point, the Judge noted that the clause, if upheld, would prevent the employee from working as a janitor for a competing business or starting a band in Mexico and being engaged as an independent contractor by a competitor to play at a staff retreat in Cancun. In the Judge’s view, this was a complete restraint of trade which went far beyond what was necessary to protect the Plaintiff employer’s proprietary interest. The fact that the prohibition stretched to include affiliate companies which were engaged in lines of business that were completely unrelated to the Plaintiff employer’s business and prevented the employee from holding 1% or more of the issued and outstanding shares of any publicly traded corporation was cited as additional protections which were unreasonable.

With respect to the clause’s temporal scope, the Judge ruled that the evidence did not support the need for a 12 month period. Moreover, the clause was ambiguous because it did not set the time period of the restriction until after the employee’s employment was terminated.

Lastly, it is important to note that none of the problems with the non-compete clause that were identified by the Judge were cured by the fact the company had intended to pay the employee his salary for the duration of the restricted period.

This decision serves as a good reminder to employers about the need to draft non-competition clauses as narrowly as possibly and tailor them to the job in question. As this case demonstrates, a blanket prohibition which blocks a departing employee from pursuing any activity with a competitor is unlikely to withstand judicial scrutiny.