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What a PC Government Means for Workplaces in Ontario

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 7th, 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.

What a PC Government Means for Workplaces in Ontario

ESA Update: Ontario Government to Temporarily Reinstate Pre-Bill 148 Public Holiday Pay Formula Effective July 1, 2018

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.

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ESA Update: Ontario Government to Temporarily Reinstate Pre-Bill 148 Public Holiday Pay Formula Effective July 1, 2018

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

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

Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

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).
Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

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

Is This The Definitive Word on Termination Provisions/Consideration?

A series of Ontario cases dating back to 2012 has put into issue the question of what does, or doesn’t, make a termination provision enforceable.  After a number of recent employer-friendly decisions, the Ontario Court of Appeal has weighed in with a decision that contains some good news, and some bad news, for employers.

In Wood v. Fred Deeley Imports Ltd., the court primarily looked at: (i) whether or not consideration was required to uphold an employment agreement; and (ii) whether the termination provision in the agreement was unenforceable (thereby opening the door to a common law notice award).  The Plaintiff, Julia Wood, was an 8.4 year employee at the time of her termination.  She signed an employment agreement the day after she started work that contained a termination provision which provided for “2 weeks’ notice of termination or pay in lieu thereof for each completed or partial year of employment…”.  The termination provision also stated that “… the Company shall not be obliged to make any payments to you other than those provided for in this paragraph” and “The payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000”. On termination, the employer provided Wood with 13 weeks of working notice, followed by a lump sum payment equal to 8 weeks of pay.

In looking first at the consideration issue, the court found that Wood had been provided with a copy of the Agreement prior to her start date, although it wasn’t signed until the day after she started work.  The court determined that this was not a case where Wood was seeing the Agreement for the first time when she signed it, nor was it a case where a new material term was introduced into the Agreement at the time of signing.  The court went on to find that the signing of the Agreement the day after Wood commenced employment was merely an administrative convenience and therefore fresh consideration such as a signing bonus was not required in order to make the Agreement valid and enforceable.  The employer was therefore successful in arguing that the Agreement was not void for lack of consideration.

However, things went downhill from there for the employer.  In looking at the termination provision, the court found that it contravened the Employment Standards Act, 2000 (ESA) and therefore was unenforceable.  It came to this conclusion for two reasons.  First, the court found that because the termination provision did not expressly require the continuation of benefits through the ESA notice period, it was in contravention of the minimum standards of the ESA.  This was so even though the employer gratuitously provided benefit continuance through the entirety of the ESA notice period.

Second, the court found that although it was possible that the termination provision could provide notice and statutory severance in accordance with or even in excess of the ESA, it was also possible for it to undercut the minimum provisions of the ESA.  Simply put, even though the “2 weeks per year” calculation could potentially result in the employee receiving more than her ESA notice and severance entitlements, it could also have the opposite effect.  In particular, Wood received less than her ESA severance in the case at hand because the payment of 8 weeks at the end of her working notice period was less than the 8.4 weeks of severance that she was entitled to under the ESA.

The court reviewed termination provisions in other cases and once again made it clear that each case will be decided based on its own facts.  For example, a termination provision which is not well drafted but does not expressly contract out of the ESA may yet be enforceable, despite this case. On the other hand, a termination provision which expressly contracts out of the ESA, as was the case here, will not be enforceable.

The broken record continues – the importance of properly drafting termination provisions cannot be understated and with so much at stake, it is critical that employers regularly review and update their termination provisions with the assistance of legal counsel.

The court’s decision in Wood v. Free Deeley Imports Ltd. may be found here.

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Is This The Definitive Word on Termination Provisions/Consideration?

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)

Ontario Minimum Wage Increase Now in Effect

Ontario employers are reminded that the general minimum wage in Ontario increased on October 1, 2016 to $11.40 per hour, up from $11.25 per hour.  The liquor server minimum wage also increased to $9.90 per hour and the student minimum wage is now $10.70 per hour. The Ontario minimum wage is indexed to Ontario’s Consumer Price Index so future increases will be published on or before April 1 and will come into effect on the following October 1.

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Ontario Minimum Wage Increase Now in Effect

Ontario Court Rules that ESA Temporary Layoff may still Result in Constructive Dismissal

An Ontario Court has ruled in Bevilacqua v Gracious Living Corporation, 2016 ONSC 4127 that even in cases where an employer has complied with the temporary layoff provisions of the Employment Standards Act, 2000 (the “Act”), the layoff does not protect the employer from a successful claim in constructive dismissal by the employee at common law. In the case, a 15 year Facilities Manager was told by his employer that he was being temporarily laid off and that he would be recalled in three months. His company benefits were continued during the layoff period. While the layoff was done in accordance with the Act, the employee immediately took the position that he had been effectively terminated when he was placed on layoff. The Court agreed with the employee, and held that absent a provision in the employee’s employment contract allowing for a temporary layoff, a unilateral layoff constituted a constructive dismissal, regardless of whether it was done in compliance with the Act. The employee in the case, who was unemployed for 15 months after he was placed on layoff, was less successful with the remedy that the Court ordered. The employee was entitled to be paid for the three months he was on layoff, but the Court found that he had failed to mitigate his damages when he declined the employer’s offer to return to his old job after the layoff period was over.

Employers who wish to place employees on unpaid layoff should use this case as a reminder to update their employment agreements to provide for the right to unilaterally impose temporary layoffs in accordance with the Employment Standards Act, 2000 without further notice or compensation.

To view the decision, click here: http://www.canlii.org/en/on/onsc/doc/2016/2016onsc4127/2016onsc4127.html.

 

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Ontario Court Rules that ESA Temporary Layoff may still Result in Constructive Dismissal