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More Legislative Changes Coming with Bill 66

Bill 66, Restoring Ontario’s Competitiveness Act, 2018 was recently introduced in the Ontario Legislature (“Bill 66”).  Bill 66—as the name suggests—aims to make Ontario more competitive by reducing regulatory burden and giving businesses more flexibility.

Bill 66 proposes to make the following changes to existing legislation:

  • Excess Hours of Work and Overtime Averaging Applications: Bill 66 proposes to amend the Employment Standards Act, 2000 (“ESA”) to no longer require approval from the Director of Employment Standards of an application for excess hours of work and overtime averaging.

Employers would still be required to enter into written agreements with employees to have employees work excess hours and to average overtime hours worked.  Additionally, employers can only average an employee’s hours of work for the purposes of calculating overtime pay over a maximum of four (4) weeks.

  • ESA Poster: Bill 66 proposes to remove the requirement for employers to provide both the ESA poster to employees and post it in the workplace. Employers will only have to provide the most recent version of the ESA poster to the employees.
  • “Non-Construction Employers”: Public bodies, including municipalities, school boards, hospitals, colleges and universities, will be deemed “non-construction employers” through an amendment to the Labour Relations Act, 1995 (“LRA”).

This proposed amendment to the LRA will help to prevent certain broader public sector entities from becoming bound to collective agreements for the construction industry, when these entities are not actually in the construction business.

  • Merging Pension Plans: The Pension Benefits Act will be amended to make it easier for private-sector employers to merge single-employer pension plans with jointly sponsored pension plans.
  • Exemption from Guardrail Requirements for the Auto Sector: For assembly lines, there will be a new, targeted exemption from guardrail requirements for a conveyor and raised platform.
  • Workplace Hazardous Materials Information System (WHMIS) regulation: This proposed amendment to WHMIS regulations would allow new labels to be placed on old containers, preventing the need to dispose of chemicals with old labels. By removing the need to re-purchase newly labeled chemicals unnecessarily, this would result in saving Ontario universities an estimated $60.2 million to $107.9 million.

Bill 66 was introduced and carried first reading on December 6, 2018.  As Bill 66 progresses through the legislature, the proposed amendments may change and new amendments may be put forth.  We will continue to keep you updated.

The author would like to thank Jonathan Meyer for his assistance with this blog.

More Legislative Changes Coming with Bill 66

WSIB’s New Rate Framework For Employers

Following policy consultations that took place from August 14, 2017 to January 15, 2018, the Workplace Safety and Insurance Board (WSIB or the Board) announced its new rate framework for employers. This framework will replace current WSIB policies on classification structure, rate setting, and retroactive experience rating on January 1, 2020. As such, employers should take note that there may be a change to how their business is classified and how premium rates are set as of January 1, 2020.

The new framework introduces six (6) core policies to replace the current thirteen (13) that make up the present system.  Notably, the new Employer Level Premium Rate Setting policy replaces current policies on the Merit Adjustment Premium Program, the Construction Industry Plan, and the New Experimental Experience Rating Plan (NEER). In preparing for the new system, employers should note that the severity of workplace accidents (as affected by the length of time that injured employees spend away from work) will become increasingly important for setting premium rates.

According to the Board, the new framework will be simpler and much easier for employers to understand. Additionally, the Board states that the new framework promises predictability and a more accurate reflection of the level of risk that individual employers and industries bring to the system. Under the new model, the WSIB limits an employer’s potential rate increase to a maximum of three risk bands per year. Employers will also be able to access their projected premium rates for future years. Additionally, the rate setting window used to set premium rates has been extended from three (3) or four (4) years to six (6) years. This change will reduce the impact that a single year has on an employer’s premium rate.

Every business registered with the WSIB should receive a letter about premium rates under the new framework later this year. More information on the upcoming rate framework changes can be found here.

Also co-authored by Jessica Hardy-Henry.

WSIB’s New Rate Framework For Employers

Compliance Reminder – New Statutory Leaves in Ontario

Employers should be aware that effective as of October 29, 2014, statutory leaves of absence in Ontario under the Employment Standards Act, 2000 (the “ESA”) will be expanded to include the new “family caregiver leave”, “critically ill child care leave” and “crime-related death and child disappearance leave”.  These leaves of absence are in addition to the current Ontario “organ donor leave”, “family medical leave”, “personal emergency leave”, “pregnancy leave”, “parental leave”, “reservist leave” and “emergency leave – declared emergencies”.  Details of the new leaves of absence are as follows:

1.  Family caregiver leave – Up to 8 weeks per year can be taken in order to take care of a family member with a serious medical condition.

2.  Critically ill child care leave – Up to 37 weeks per year can be taken in order to care for a critically ill child under the age of 18.

3.  Crime-related child death and disappearance leave – Up to 52 weeks can be taken if an employee’s child disappears and it is probable that the child disappeared as the result of a crime.  If a child dies as a result of the crime, the leave period is increased to up to 104 weeks.

Each of these leaves of absence are unpaid, and under each leave time off can be taken by the employee in bits and pieces rather than altogether.  Employees using the critically ill child care leave may be eligible for Employment Insurance benefits for a portion of the leave; however guidance should be sought from Service Canada, as the leave provisions do not match up precisely with EI benefit eligibility.

As a reminder, the current statutory personal leaves of absence which are already in place in Ontario are the following:

(i)  Personal emergency leave – Up to 10 days of leave per year to deal with a personal emergency, illness, injury or urgent matter for oneself or a specified family member.  Personal emergency leave is only required in workplaces with 50 or more employees in Ontario.

(ii)  Family Medical Leave – Up to 8 weeks of leave per year to provide care or support to certain family members for whom a qualified health practitioner has issued a certificate stating that the family member has a serious illness with a significant risk of death occurring within a period of 26 weeks.

(iii)  Organ Donor Leave – Up to 13 weeks of leave per year for those employees who have undergone surgery for the purpose of organ donation.

(iv)  Reservist Leave – Time off for reservists to assist with international and domestic emergencies, for the period of time required to assist with the operation.

In addition to the above leaves, all employers should be aware of their obligations to provide pregnancy and parental leave under the ESA.

Employers should review their employee handbooks prior to October 29th in order to determine how the new leaves fit with existing statutory and non-statutory leave entitlements.

Compliance Reminder – New Statutory Leaves in Ontario

20-Day Jail Sentence for Employee who Released Employer’s Confidential Information in Breach of Court Order

A former employee received a 20-day jail sentence after she flagrantly disregarded a court order by disclosing the plaintiffs’ confidential business methods and disparaging their business reputation.

Background

In July 2013, Ceridian entered into an agreement with Pendylum Inc. (“Pendylum”) to assist in the delivery of services to Ceridian’s customers. Under the terms of its agreement with Pendylum, Ceridian required that all of Pendylum’s subcontractors, including the Defendant, submit to a background check.  The Defendant refused.  As a result, Pendylum terminated the Defendant’s contract.

Following her dismissal, the Defendant embarked on an email campaign with Pendylum and Ceridian that culminated in threats and conduct akin to extortion.  In November 2013, the Defendant sent a letter to Ceridian advising that unless she received the sum of $23.2 million, she would disclose confidential information relating to the Plaintiffs’ business and their customers.  The Defendant subsequently reduced her demand to $500,000.00. On April 24, 2014, the Defendant sent another letter to Ceridian, in which she threatened to circulate a “press release” on May 12, 2014 containing the Plaintiff’s confidential information to “every press agency and HR and payroll agency across Canada and the U.S.”.  By letter dated May 8, 2014, the Defendant repeated her threat of disclosing her “press release” on May 12, 2014.

In response to the Defendant’s threats, the Plaintiffs brought an ex parte motion for, amongst other things, an interim injunction. The Court granted a five-day interim injunction prohibiting the Defendant from publishing the press release. Although the Defendant had knowledge of the court order, she disregarded the order and proceeded to issue the press release, which was widely disseminated on the internet by numerous news outlets.

The Finding of Contempt

The Court concluded that the Defendant knowingly and deliberately breached the court order by:

  1. releasing the enjoined document to press agencies;
  2. making absolutely no effort to stop the public release despite the pleas and offers of assistance from the Plaintiffs; and
  3. failing to provide the Plaintiffs with the list of persons to whom she had disclosed the confidential information.

The Court noted that if the Defendant disagreed with the court order, then the proper route would have been for her to challenge it by appeal or by another proceeding before the courts, not by ignoring its terms.

The Sentence

When considering the appropriate sentence for the Defendant’s non-compliance, the Judge commented that in his nine years as a judge he had “never encountered a more defiant or less remorseful Defendant”.  The Court found that the Defendant was deserving of significant sanction for, inter alia, the following reasons:

  • The Defendant knowingly and deliberately breached the court order, which can be evidenced by the emails that she exchanged with the Plaintiffs’ counsel in which she wrote “the court order has no effect” and “[the judge] cannot violate my right to free speech.”
  • The Defendant took no steps to retract the press release even after she was aware of the court order.
  • The Defendant continued to attempt to extort a settlement even after she had knowledge of the court order.
  • The Defendant continued to refuse to provide a list of the persons to whom the press release/confidential information had been disclosed.
  • There was uncontroverted evidence that the Plaintiffs may sustain significant harm as a result of the press release, which may have an impact on the Ceridian’s business and position in a competitive market.

Based on the foregoing, the Court found the Defendant’s breach of the order to be serious and continuing.  Moreover, the Court found no mitigating factors – the Defendant did not show remorse; she did not apologize; she made no attempt to purge the contempt; she made no effort to stop the press release when she had days to do so; and she refused to provide the names of persons to whom the confidential information was disclosed.  Furthermore, at the sentencing hearing she continued to argue that: this is nothing more than a defamation case; the order should never have been issued; the order was not breached; and that the Court and counsel have “colluded.”

The Court determined that a fine was an inappropriate sanction on the facts of this case.  The Defendant was a single mother and the costs awards to date, totaling approximately $27,500, had not been paid and the Court accepted would probably never be paid.

Typically, incarceration for civil contempt is a sanction of last resort.  However, the Court held that where the “the administration of justice has been flouted or ignored in public, imprisonment may be necessary for the court to send a clear a message that society as a whole disapproves of anyone who deliberately disobeys a court order”. The Defendant was sentenced 20 days in jail, to be served intermittently over five weekends so as not to jeopardize her employment income as the sole provider for her family.

Ceridian Canada Ltd. v. Azeezodeen, 2014 ONSC 4162 (CanLII)

20-Day Jail Sentence for Employee who Released Employer’s Confidential Information in Breach of Court Order

Top Ten Tips for the Workplace

Every now and then, it’s worth it for even the most seasoned HR professional to receive a reminder about best practices in the workplace.  Ensuring compliance with our Top Ten Tips list below will help to keep your workplace running smoothly.

1.  Ensure that all  employees sign employment agreements that clarify potentially contentious issues up front, such as entitlements on termination.

2.  If your workplace has any concerns about protecting company confidential information or intellectual property, ensure that employees also sign some form of Confidential Information and Intellectual Property Agreement (“IP Agreement”).

3.  Remember that employment agreements and IP Agreements must be signed before an employee’s start date.  If that doesn’t happen, then the employee must be provided with some sort of “consideration” for signing (eg. a signing bonus; a promotion and salary increase), and the consideration should be specifically referenced in the agreement(s).

4.  Remember that the law is ever-changing:  a good employment agreement template one year will not necessarily be legally compliant the next year.  An annual legal review of your employment agreement templates will provide a significant cost savings to your business in the long run.

5.  If it is important to your business that restrictive covenants be entered into, ensure that non-competition covenants are not used where non-solicitation and confidentiality covenants would suffice to protect the company.  In addition, ensure that the covenants are sufficiently narrowly drafted in terms of scope, duration and jurisdiction so that they can be upheld by the courts.

6.  Provide employees with at least several days to consider any employment agreements that they are being asked to sign, so that they may obtain legal advice if they wish.

7.  Ensure that your workplace is up-to-date and compliant with all of its statutory obligations.  In Ontario for example, that includes ensuring that all employees have undertaken mandatory Workers and/or Supervisors Health & Safety Awareness Training, ensuring compliance with the Access to Ontarians with Disabilities Act (AODA), ensuring compliance with the Pay Equity Act if applicable, and ensuring that your workplace has posted all required Employment Standards Act (2000) posters and all required Occupational Health & Safety Act posters and policies.

8.  In the event of employee disability issues, consider obtaining legal advice to help you to properly assess and monitor the situation, so that both your workplace and the employee are protected and treated appropriately.

9.  In the event that an employee must be terminated, ensure that he/she is provided with reasonable notice in accordance with the applicable statute, any applicable employment agreement, or the common law (except in the case of a just cause termination).  Do not seek a release unless the employee has been offered something more than the minimum statutory entitlements, and if the employee refuses the offer, provide all minimum statutory amounts even in the absence of a release.  Ensure that benefits and vacation pay continue to accrue through the statutory notice period, and ensure that the Record of Employment is properly completed and submitted in a timely manner.

10.  Don’t hesitate to seek legal advice.  Oftentimes, the biggest problems can be made much smaller if legal counsel is contacted before action is taken.

 

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Top Ten Tips for the Workplace

Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

Does a “kick in the butt” excuse a punch in the mouth? That was the question facing the Court in the recent case of Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.).

Peng Li and Winston Furguson worked in the shipping and receiving department of a furniture company. Li and Furguson’s coexistence was initially uneventful; however, their relationship had begun to disintegrate following allegations by Li that Furguson was stealing from the company.

On April 19, 2011, things between Li and Furguson reached a boiling point. After searching for Furguson throughout the warehouse, Li finally found his target and confronted him. What happened next was a source of disagreement between the parties, although the judge adopted the following facts. Li began speaking very closely to Furguson; so close that spit was transferred to Furguson’s face, albeit unintentionally. As Furguson tried to break free, Li kicked Furguson in the “butt” with his steel-toe boots. Furguson then wheeled and punched Li twice – one blow was inconsequential, the other was not as it resulted in Li incurring over $7,000.00 in costs for restorative dental services.

At trial, Li argued that he was entitled to damages from Furguson for the tort of battery. However, in the judge’s view, Li’s actions amounted to implied consent to the battery:

Having insulted, berated and confined a person at close quarters, then scuffled with them and kicked them I cannot see how a reasonable person could maintain that a punch or two in return was beyond their reasonable contemplation as being with the scope of what they had implicitly consented to.

 

In addition, the judge held that Li had provoked Furguson by kicking him. Although provocation was not a complete answer to Li’s claim of battery, it nonetheless operated to mitigate the damages that Li had in turn claimed.

In light of these facts, the judge dismissed Li’s claim in its entirety.

It is important to note that while Li had originally brought an action against his employer in which he made a number of claims, including one for “wrongful dismissal”, this action was discontinued before trial. Regardless, apart from the civil liability above, the altercation between Li and Furguson would certainly attract the attention of any employer’s workplace violence policy and potentially lead to discipline.

Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.)

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Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

Human Rights claims in the Ontario courts – Now What?

Way back in 2008, the Ontario Human Rights Code was amended to permit human rights claims to be piggybacked onto wrongful dismissal actions in the Ontario courts.  Prior to that time, the only recourse for an employee with a discrimination claim was to make a complaint to the [then] Human Rights Commission.  Some 5 years later, the Ontario Superior Court of Justice has recently released its very first decision in a joint wrongful dismissal/discrimination action.

The case in question was the September decision of Justice Grace in Wilson v. Solis Mexican Foods Inc.  Patricia Wilson was a 16 month employee at the time of her termination, and off work due to back problems.  The reason given for Ms. Wilson’s termination was a corporate reorganization, but the court found that reasoning “[defied] common sense” as Ms. Wilson was never told about the impending reorganization while it was taking place.  The court looked closely at the communications between Ms. Wilson’s doctor and employer, and found that the only conclusion that could be drawn was that the employer was not happy with Ms. Wilson’s ongoing back problems and absences from work, or her requests for accomodation.  Justice Grace reiterated that as long as an employee’s disability is a factor in the decision to terminate, there will be a finding of discrimination.  That is the case whether the disability is the sole factor or simply one small factor in the decision-making process.  In this case it was clear to the judge that Ms. Wilson’s back problems were a significant factor in the decision to terminate, but the result would have been the same even if her back problems were but one factor along with the reorganization.

Having determined that Ms. Wilson had been discriminated against, the court awarded her $20,000 due to the fact that she “lost the right to be free from discrimination” and experienced “victimization”, and due to the fact that the employer orchestrated her dismissal and was disingenuous both before and during the termination.  That amount was in addition to the damages received in lieu of notice of termination.

Interestingly, the court did not comment on whether or not reinstatement of employment was an option, thereby leaving that issue to another court on another day.  While employees pursuing complaints at the Human Rights Tribunal can seek reinstatement, and while the Human Rights Code appears to permit courts to make similar orders, we still have no guidance as to whether reinstatement will become a tool used by our courts.

To view the decision, click here:  http://canlii.org/en/on/onsc/doc/2013/2013onsc5799/2013onsc5799.html

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Human Rights claims in the Ontario courts – Now What?

Natural Disasters in the Workplace – What Do I Do?

Did you know that the Ontario Ministry of Labour has a Q&A on how to deal with natural disasters in the workplace?

The Q&A, which can be found at the link listed below, covers issues such as whether or not an employee can be forced to take vacation days in the event of a natural disaster which prohibits him or her from working, or whether an employee must be paid if he or she is told to not come to work during the disaster.

Apart from basic issues covered in the Q&A, there are a number of other things to be aware of in the event of a natural disaster.  The Emergency Management Statute Law Amendment Act, 2006 (Ontario) permits the Premier and Cabinet to introduce legislation intended to govern emergencies such as natural disasters.  In addition, the Employment Standards Act, 2000 (Ontario)  provides for unpaid emergency leave for declared emergencies such as natural disasters, which is different than the standard emergency leave to deal with an ill or injured family member.

While an employer may not wish its employees to come to work in the event of a natural disaster, there may also be situations where certain employees are in fact required to work precisely because of the natural disaster, even if the workplace is under quarantine.  The ESA specifically permits certain employees to work in those situations, if their skills are required due to an emergency.  Likewise, although employees may rely on the Occupational Health & Safety Act (Ontario) (“OHSA”) to refuse to work if they are concerned that the condition of their workplace may jeopardize their health or safety, exemptions to OHSA require certain essential employees to work notwithstanding those conditions.

In addition to the above, there are a number of other pieces of provincial and federal legislation which work together to answer some of the key questions about how to deal with a natural disaster in the workplace.  Whether that disaster relates to health issues (eg. SARS, H1N1), loss of the workplace premises or something else, this combined legislation will help employers determine the appropriate response to disasters, and it is recommended that employers be proactive about understanding their obligations so that they are prepared in the event that disaster strikes.

To access the Ministry of Labour’s Q&A, click here.  For more information about all of the workplace issues involved in the event of a natural disaster, a more thorough discussion can be found here.

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Natural Disasters in the Workplace – What Do I Do?

Obligation to Post Ontario’s New Safety Poster

On October 1, 2012, Ontario Ministry of Labour inspectors began enforcing employers’ legal obligation to post the MOL’s new safety poster.

The poster, which is available in 17 languages, is called “Health and Safety at Work – Prevention Starts Here”. It may be downloaded and printed from the MOL’s website (click here). 

Section 25(1)(i) of the Occupational Health and Safety Act requires employers to “post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers”.  The MOL states that the poster is such “explanatory material prepared by the Ministry”, and therefore it must be posted.

On its website, the MOL says, “The poster summarizes workers’ health and safety rights and responsibilities and the responsibilities of employers and supervisors. It also reminds employers that they must not take action against workers for following the act or for raising workplace health and safety concerns, and seeking enforcement of the OHSA. The poster encourages workers to get involved in health and safety and explains when and why to contact the Ministry of Labour.”

The poster also sets out a toll-free number for employees to call the MOL.

Ontario employers should ensure that the poster has been posted in their workplace.  Inspectors will look for it when they arrive at workplaces.  By posting the poster, employers send a signal to MOL inspectors that they are on keeping on top of health and safety law developments.

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Obligation to Post Ontario’s New Safety Poster

Get your jab! – British Columbia Government Imposes Flu Vaccination Requirement for Health Workers

This article originally appeared on occupationalhealthandsafetylaw.com.

In hopes of driving up immunization rates among BC health care workers, the Government of British Columbia is imposing strict flu-season requirements on workers who come into contact with patients at publicly-funded health care facilities or in the community. Starting with the upcoming flu season, applicable health care workers (including health-authority staff, physicians and residents, volunteers, students, contractors and vendors) will be required to either obtain a seasonal influenza vaccine or to generally don a mask at all times during the flu season.

B.C. Provincial Health Officer Dr. Perry Kendall, who recommended these measures to the Provincial Government, wrote that less than 50 percent of health care workers are immunized against influenza each year, despite being in contact with high risk populations such as seniors, pregnant women, young children, and the immuno-compromised. Citing evidence from long-term care facilities that health care worker vaccinations results in diminished illness and fewer deaths each flu season, the physician argued that “[g]etting the flu shot should be considered standard patient safety practice for all health-care workers who come into contact with patients – as important as following effective hand hygiene practices, staying home when ill or wearing a mask in the operating room.” British Columbia will be the first jurisdiction in Canada to implement such a policy.

According to media outlets, the unions representing health care workers are generally supportive of vaccinations, although the British Columbia Nurses Union has said it will not yet formally respond to the directive and has rather referred to its October 2011 Press Release on the issue where it stated that vaccinations should be promoted through education, rather than through a punitive approach by the employer.

A Government of British Columbia “Backgrounder”, cites influenza as causing the most deaths among vaccine-preventable diseases.

According to Dr. Kendall, in U.S. jurisdictions where similar requirements have been imposed, health care worker immunizations levels have reached approximately 95 percent.

The Government’s Press Release, Dr. Kendall’s Opinion Editorial and the BCNU Press Release on Influenza vaccinations can be accessed at:

http://www.gov.bc.ca/health/

http://www.newsroom.gov.bc.ca/ministries/health/factsheets/opinion-editorial-flu-shots-save-lives-protect-patients.html

https://www.bcnu.org/News/news.aspx?page=Bulletins_Oct 21, 2011

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Get your jab! – British Columbia Government Imposes Flu Vaccination Requirement for Health Workers