Employment & Labour Law 

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.

In conjunction with its overhaul of the Employment Standards Act, 2000, the Ontario government has also published an updated version of the Employment Standards Poster. Employers must post the poster in the workplace in an area where it is likely to come to the attention of employees and provide a copy of the poster to its employees. As employment standards officers will no doubt be on the look-out for this poster, employers should ensure that they take steps to comply with this easy to spot obligation.

The new poster can be downloaded from the Ministry of Labour’s website at: https://www.labour.gov.on.ca/english/es/pubs/poster.php.

As we begin 2018, we bring you a review of 10 employment law cases that we thought were worth tweeting about in 2017.

1. Buchanan v. Introjunction Ltd, 2017 BSCS 1002 – Employee who was dismissed before actually starting work gets 6 weeks’ notice.
2. Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 – Mitigation Madness! Employment income earned during “statutory entitlement period” and/or from “inferior position” may not be deductible from wrongful dismissal damages.
3. Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 – Another termination clause bites the dust! In order to contract out of the common law, employers must use clear and unambiguous language. An employer cannot fix an otherwise illegal and unenforceable termination clause through its post-termination conduct.
4. Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 – Ontario Court allows the Toronto Transit Commission to implement random drug and alcohol testing.
5. Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873 – Court of Appeal confirms that in an asset sale, a purchaser’s offer of employment constitutes sufficient consideration for changes in an employment contract – including the introduction of a termination provision.
6. McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073 – Working Notice Doesn’t Work for Disabled Employees. Court rules that employers cannot provide working notice to employees on disability leave because they are incapable of working.
7. Lalonde v Sena Solid Waste Holdings Inc, 2017 ABQB 374 – Employer’s “shoot first ask questions later” approach to termination results in $75,000 in aggravated damages. Employers must conduct a thorough investigation which gives the employee a proper opportunity to present his/her side of the story.
8. British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 – The scope of human rights legislation is broad enough to protect employees who suffer discrimination from co-workers – even if the co-worker is employed by a different employer.
9. Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 – Some helpful guidance on when an employer can request an independent medical examination! Where an employer has a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert an IME will be warranted.
10. Papp v Stokes et al, 2017 ONSC 2357 – Employer’s negative reference does not trigger damages because it was substantially true and is covered by qualified privilege (so long as there is no proof of malice).

Stay tuned for details on our upcoming webinar where we highlight the employment and labour law trends to be prepared for in 2018!

The Ontario government has just passed the Bill 148 which amends the Employment Standards Act and the Labour Relations Act with a target effective date of January 1, 2018.  The Bill still needs to receive Royal Assent.

Key changes to the Employment Standards Act will include:

• Raising the general minimum wage to $14 per hour as of January 1, 2018 and $15 per hour as of January 1, 2019
• As of April 1, 2018 requiring the same rate of pay as paid to full-time employees for employees doing substantially the same kind of work including temporary help agency staff, casual, part time, temporary and seasonal workers
• Increasing the minimum vacation to three weeks per year after an employee has five years of service
• Increasing parental leave for birth mothers who have taken maternity leave to 61 weeks (from the current 35 weeks);  increasing parental leave for adoptive parents and fathers to 63 weeks (from the current 37 weeks)
• Extending the availability of personal emergency leave days to employers with under 50 employees
• Requiring the first two days per year of personal emergency leave to be paid with the remaining eight days unpaid
• Extending the leave of absence to 104 weeks for death of a child as a result of a crime to the death of a child for any reason
• Increasing the current 52 week leave of absence in the case of child disappearance as a result of a crime to 104 weeks
• Increasing family medical leave from 8 weeks to 28 weeks
• Adding a new domestic violence/sexual violence leave of absence ; up to 10 days off and up to 15 weeks of leave per year will be available (first five days to be paid) where an employee or an employee’s child experiences domestic or sexual violence and needs time off for medical attention, counselling, to relocate, for legal assistance or law enforcement reasons

There are numerous changes that will come into effect on January 1, 2019 concerning scheduling including the following:

• If a shift is cancelled within 48 hours of its start, employees will be paid 3 hours of pay
• Employees can refuse a shift without repercussion if they receive less than 96 hours of notice
• On-call employees who are either not called into work or work fewer than three hours must be paid three hours of their regular pay rate

The Ministry of Labour has announced that it will hire up to 175 additional Employment Standards Officers to enforce the changes.

Key changes to the Labour Relations Act will include:

• Card-based union certification for the building services industry, the home care and community services industry and the temporary help agency industry
• Allowing unions to access employee lists and certain contact information provided the union can demonstrate that it has the support of 20% of employees in the proposed bargaining unit.
• OLRB can conduct votes outside the workplace, including electronically and by telephone
• Employees in a bargaining unit may only be disciplined or discharged for just cause in the period between certification and the date on which a first contract is entered into, and during the period between the date the employees are in a legal strike or lock-out position and the date a new collective agreement is entered into (or the date on which the union no longer represents the employees)
• Maximum fines will increase to $5,000 for individuals and $100,000 for organizations (formerly these fines were $2,000 for individuals and $25,000 for organizations).