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Going, Going, (Mostly) Gone: Ontario Conservative Government Announces Targeted Rollback of Bill 148 Amendments to the Ontario Employment Standards Act and the Ontario Labour Relations Act

Earlier today, Premier Doug Ford followed through on his promise to revisit the previous Liberal government’s labour reforms by introducing legislation that eliminates many of the most controversial aspects of Bill 148. The changes include:

  • Minimum wage increase to $15.00/hr effective January 1, 2019 is cancelled – the existing minimum wage of $14.00/hr will be maintained and will be re-indexed starting in October 2020;
  • 2 paid emergency leave days will be removed – personal emergency leave days will now be 8 days consisting of up to three days for personal illness, two days for bereavement, and three days for family responsibilities;
  • The ban on employers requesting doctor’s notes is removed – employers will be able to ask for reasonable evidence from qualified health practitioners in support of an employee’s request for personal emergency leave days;
  • Equal pay for equal work will be removed, on the basis of employment status and assignment employee status. However, the requirement for equal pay on the basis of sex will be maintained.
  • The new scheduling and on-call provisions will be revoked;
  • The reverse onus provision regarding independent contractors will be revoked;
  • The expansion of the automatic card based certification for industries outside of construction will be revoked;
  • The 20% threshold for unions to apply for employee information is gone;
  • The new first contract arbitration provisions will be reversed; and
  • The doubling of fines under the Ontario Employment Standards Act, 2000 will be reversed.

That said, the new legislation preserves employees’ entitlements to the previously announced enhanced vacation benefits as well as the new leaves of absence (i.e. Child Death and Domestic or Sexual Violence Leave).

These changes are likely to be welcomed by employers across the province. In particular, the return to the pre-Bill 148 position on personal emergency leave and scheduling will eliminate a great amount of uncertainty amongst employers. We will be following the progress of this legislation closely and will be providing regular updates as the Bill progresses.

Going, Going, (Mostly) Gone: Ontario Conservative Government Announces Targeted Rollback of Bill 148 Amendments to the Ontario Employment Standards Act and the Ontario Labour Relations Act

Webinar: Employment and Labour law trends to watch for in 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.

Webinar: Employment and Labour law trends to watch for in 2018

Court Strikes Down Non-Compete Which Would Have Prevented Employee from Starting a Band in Mexico and Playing at a Staff Retreat in Cancun

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.

 

Court Strikes Down Non-Compete Which Would Have Prevented Employee from Starting a Band in Mexico and Playing at a Staff Retreat in Cancun

Posting Alert – Ontario Publishes Updated Version of Employment Standards Poster

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.

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Posting Alert – Ontario Publishes Updated Version of Employment Standards Poster

10 Employment Law Cases That You Should Remember from 2017 (in 280 characters or less)

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!

10 Employment Law Cases That You Should Remember from 2017 (in 280 characters or less)

A Truly Poisoned Work Environment – Arbitrator Upholds Discharge of Employee Who Spiked Office Water Cooler with Bleach

In what can only be described as a victory for common sense, an arbitrator recently upheld the discharge of a 27 year employee who was found responsible for spiking the office water cooler with chlorine bleach.

On September 12, 2011, an employee reported to his supervisor that the water from the office water cooler had a “strong chlorine smell” and a “very hard taste”. In reviewing the surveillance video on the day in question, the Grievor is seen exiting his office with an empty water cooler jug, entering the chemical storage room and then leaving the chemical storage room and walking back to his office with a chlorine bleach jug in his hand. As he re-enters his office, the Grievor is seen placing his hand on the cap of the chlorine bleach jug. The Grievor later exits his office with the chlorine bleach jug in his hand. He ultimately returns to his office with a full jug of water for the cooler.

When initially confronted about the situation, the Grievor denied that he had caused the contamination of the water cooler but volunteered no information about why he had obtained the bleach from the chemical storage room. However, in his subsequent meetings with investigators and through his testimony at the hearing, the Grievor’s story evolved to the point where he alleged that he had poured the bleach into two cups – one to be used later in the day to clean some shelves in his office and the other to pour into a dumpster located outside his office in order to kill its odour.

At the hearing, the Grievor’s supervisor rejected the Grievor’s explanation noting that it made no sense for the Grievor to clean the shelves since they were not dirty and they were being dismantled to be taken out of the building. He further testified that he never saw the Grievor use a cup to pour chlorine breach into the dumpster.

In his decision, the Arbitrator found that the Grievor’s testimony lacked credibility. In the Arbitrator’s view, “the Grievor’s many actions, as witnessed on the video and as described in his testimony, when taken together simply defy logic and do not make sense”. As a result, the Arbitrator ruled that it was more likely than not that he was the cause of the chlorine bleach contamination of the office drinking water cooler. With respect to penalty, the Arbitrator held that “…the level of mistruths and evasiveness displayed by the employee, as well as his failure to take responsibility for his actions, irreparably harmed the employee-employer relationship.” There was therefore no basis for the Arbitrator to interfere with the Employer’s decision to dismiss the Grievor for cause.

This case is a good reminder of the importance that credibility will play when an adjudicator is asked to determine which version of events is more likely to have occurred. In conducting investigations, employers should ensure that they take detailed statements from those involved so as to “nail down” the alleged offender’s story. Should the alleged offender later change his or her story, the employer will be in a good position to impeach the employee’s credibility.

Knox v. Treasury Board (Canadian Food Inspection Agency), 2017 PSLREB 40.

 

 

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A Truly Poisoned Work Environment – Arbitrator Upholds Discharge of Employee Who Spiked Office Water Cooler with Bleach

Changing Workplaces Review to be Released May 22: Media Reports

The countdown is on.

Over the weekend the Toronto Star and the CBC each published stories detailing what Ontarians can expect to see in the long awaited final report from the Changing Workplaces Review when it is released later this month. Citing unnamed government sources, the media outlets report that the Changing Workplaces Review has proposed a number of changes to Ontario’s labour and employment legislation including:

  • making it easier for cleaning staff and home-care workers to unionize;
  • requiring that employers provide employees with paid sick days;
  • increasing the minimum amount of vacation from 2 weeks to 3 weeks;
  • providing certain protections to independent contractors;
  • eliminating some of the exemptions to the Employment Standards Act, 2000 so that more workers are entitled to overtime and certain leaves of absence.

In addition, there is speculation that the Government may increase the minimum wage to $15.00 per hour.

We will continue to follow this story and will provide a comprehensive review once the final report is released.

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Changing Workplaces Review to be Released May 22: Media Reports

2016 Labour and Employment Law – A Year in Review (in 140 characters or less)

As we close out the first month of 2017, we thought it appropriate to briefly review the cases which caught our eye in 2016 in 140 characters or less:

  1. Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 – @SCC_eng confirms Federally regulated employers cannot be dismissed without cause.
  2. Paquette v. TeraGo Networks Inc., 2016 ONCA 618 / Lin v. Ontario Teachers’ Pension Plan, 2016 ONCA 619 – Requirement of “Active Employment” on payout date without something more is not enough to limit employee’s bonus entitlement over notice period.
  3. Oudin v. Centre Francophone de Toronto, 2016 ONCA 514 – ONCA upholds less than perfect termination provision that does not contemplate the continuation of benefits.
  4. Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance) – Beware, Twitter can be an extension of the workplace.
  5. Strudwick v. Applied Consumer & Clinical Evaluations Inc, 2016 ONCA 520 – Court of Appeal doubles the initial award of damages against employer for bad behaviour.

Turning to the future, we invite you to join us at our complimentary webinar on February 9, 2017 as we will be discussing the trends that employers can expect to see in 2017.

Details are available by clicking here

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2016 Labour and Employment Law – A Year in Review (in 140 characters or less)

Supreme Court of Canada to Federally Regulated Employers: No “Without Cause” Dismissals Under Canada Labour Code

In a decision which returns us to what many thought was the status quo, the Supreme Court of Canada has ruled that, (save for exempt employees), the unjust dismissal scheme in the Canada Labour Code (the “Code”) does not permit federally regulated employers to dismiss employees without cause once they have one year of service or more. This decision reverses the decisions of the Federal Court and Federal Court of Appeal, which had ruled that nothing in the Code precluded federally regulated employers from dismissing non-unionized employees on a without cause basis. As a result, for federally regulated employers, when it comes to dismissal, the right of non-union employees to protection from dismissal tracks the right of their unionized counterparts.

Facts:

In November 2009, Atomic Energy Canada Limited (“AECL”) dismissed a procurement supervisor after four and a half years of service. The employee promptly filed an “Unjust Dismissal” complaint, claiming that he had been unjustly dismissed contrary to the Code. In response, AECL argued that because it had provided the employee with a generous severance package well in excess of his minimum statutory entitlements (i.e. 6 months’ pay), the employee had not been unjustly dismissed. The Adjudicator appointed to hear the matter disagreed with AECL and ruled that an employer could not rely on severance payments, however generous, to avoid a finding that an employee had been unjustly dismissed under the Code.

In a surprise to many, the Federal Court of Canada, and then the Federal Court of Appeal, disagreed with the Adjudicator, holding that nothing in the Code prevented federally regulated employers from dismissing non-unionized employees without cause. The employee appealed to the Supreme Court of Canada.

Supreme Court of Canada:

Writing for the majority, Justice Abella stated that the purpose of the Code’s unjust dismissal scheme was to provide “…a cost-effective alternative to the civil court system for dismissed employees to obtain meaningful remedies which are far more expansive than those available at common law”. In Justice Abella’s view, the remedies contemplated by the Code for non-unionized employees were meant to reflect those generally available in the collective bargaining context. As such, in the federal sphere, the common law right of employers to dismiss “…whomever they want for whatever reason they want so long as they give reasonable notice or pay in lieu” was superseded by the Code, which did not give federally regulated employers such a right.

What this means for Federally Regulated Employers:

For better or for worse, the Supreme Court of Canada’s decision provides legal certainty for Canada’s federally regulated employers, as it ends the debate about whether the Code permits without cause dismissals. That said, the Supreme Court of Canada’s decision does not mean that an employee’s right to sue his or her former employer in court for wrongful dismissal has been extinguished. As the minority noted in this case, due to a legislative wrinkle, a federally regulated employer can dismiss an employee without cause as long as that employee chooses to challenge the lawfulness of the dismissal in the civil courts.  However, if the employee files a complaint under the Code’s unjust dismissal scheme, the notice provided to the employee will not insulate the employer from an adjudicator’s finding that the dismissal was nonetheless unjust.

Accordingly, unless and until the Code’s unjust dismissal scheme is amended to allow for without cause dismissals, federally regulated employers can only dismiss an employee with one year of service or more due to performance issues, a lack of work or the discontinuance of a function. Failure to meet this requirement could result in significant liability for the employer, including reinstatement.

Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (http://www.canlii.org/en/ca/scc/doc/2016/2016scc29/2016scc29.pdf)

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Supreme Court of Canada to Federally Regulated Employers: No “Without Cause” Dismissals Under Canada Labour Code

Join us May 1st for Dentons’ Spring Employment and Labour Law Update

Please join us on May 1st for a complimentary seminar /webinar on the following topics:

July 1st Deadline Looming: How to Comply with Ontario’s New Safety Awareness Training Regulation
Adrian Miedema

Internal Fraud — Managing Termination and Asset Recovery Options
Mark Evans and Blair McCreadie

An Update on Ontario’s Workplace Violence and Workplace Harassment Law
Saba Zia

CHRP Accreditation
This program may be eligible for recertification points.

CPD Accreditation
This 1.5 hour program can be applied toward 9 of the 12 educational hours for Continuing Professional Development required annually by the Law Society of Upper Canada. Please note that these CPD hours are not accredited for the Professionalism Requirement.

Event Details

May 1, 2014
Registration & Breakfast
8:00 – 8:30 a.m. EDT
Seminar
8:30 – 10:00 a.m. EDT

Dentons Canada LLP, 77 King St West, North Building, 5th Floor, Toronto

Or by webinar

To RSVP:

RSVP to Carla Vasquez, Specialist, Marketing and Events at carla.vasquez@dentons.com.

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Join us May 1st for Dentons’ Spring Employment and Labour Law Update