Latest Posts

Ontario Court of Appeal Upholds Extraordinary Award in Wrongful Dismissal Case

In Ruston v Keddco Mfg. (2011) Ltd., 2019 ONCA 125, the Ontario Court of Appeal upheld an extraordinary award – totaling more than $1.1 million – against an employer that breached its duty of good faith and fair dealing in the manner in which it dismissed one of its former employees.

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A “Border Wall” of a Legal Kind

Ontario Labour Relations Board Holds that Only Ontario Payroll Matters in Determining Potential Employer Liability for Severance Pay

While every Canadian province requires employers to provide employees with a prescribed minimum amount of notice (or pay in lieu thereof) on termination without cause, Ontario is unique in that it is the only provincial jurisdiction where employees may also be eligible for statutory “severance pay”1.

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Ontario Court Pushes the Envelope with 30 Month Reasonable Notice Award in Employment Cases

Until recently, employers could be reasonably assured that Canadian courts would limit a dismissed employee’s entitlements to reasonable notice at common law to a maximum of 24 months. However, cases where exceptional circumstances have been found to justify notice periods in excess of 24 months have been appearing with increased frequency – especially in Ontario.

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Employers Must Update Employment Standards Posting – For Now

The Ontario Ministry of Labour has issued a new version of its Employment Standards Act, 2000 (“ESA”) poster to reflect recent changes to employment standards in the province. Employers are obligated to post the new version in a conspicuous place in the workplace, provide a copy to any new hires and, where the majority of employees speak a language other than English, post a copy in that language alongside the English version (provided that the Ministry has a translated version of the poster available). A link to Version 8 of the ESA poster and the translated versions can be found here.

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Ontario Ministry of Labour Inspections Schedule

Ontario's Ministry of Labour has released its schedule of inspection initiatives for 2019. These inspections involve consideration of both health and safety and employment standards compliance in the workplace. The Ministry focuses on sectors where (a) there is a history of violations, (b) vulnerable workers like new and young workers, temporary foreign workers and precarious worker are employed, and (c) there has been an increase in the number of people employed.

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2018: The Year in Review in Employment Law

We often say there is rarely a dull moment in employment law. This year, however, has been exceptionally eventful. From a pendulum swing caused by the change in government to statutory obligations in Ontario, to #metoo, to the legalization of cannabis and its impact on the workplace, it has been an exciting year. We recap the major developments in Ontario, Alberta, British Columbia and for federally-regulated employers below.

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Bill 148 is Officially Unravelled as Bill 47, the Making Ontario Open for Business Act, 2018 Becomes Law

On November 21, 2018, Bill 47, the Making Ontario Open for Business Act, 2018, quickly passed third reading and received royal assent.

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Ontario Government May Delay Canada's First Pay Transparency Legislation

As of the date of writing, Ontario's Pay Transparency Act, 2018 (the Act) is set to come into force on January 1, 2019. The Act, which we initially reported on back in March 2018 and April 2018, was introduced by Ontario’s former Liberal government in March 2018 and is the first legislation of its kind in Canada. It aims to address wage gaps based on gender and promote pay transparency in the workplace by requiring employers to maintain, track and publish employee compensation information.

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Reminder for Employers in Ontario: Police Record Checks Reform Act, 2015 in Force on November 1, 2018

Although employers in Ontario are no doubt preoccupied with the recently introduced Bill 47, Making Ontario Open for Business Act, 2018 (summarized in our recent article available here), they should also be reminded that the Police Record Checks Reform Act, 2015 comes into force on November 1, 2018. The Police Record Checks Reform Act, 2015 creates a comprehensive regime governing police record checks in Ontario in an effort to respond to widespread concerns around the disclosure of non-criminal and non-conviction information through the existing police record check processes. For more information about the new rules governing police record checks in Ontario, please see our article summarizing the Police Record Checks Reform Act, 2015, available here.

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Unravelling Bill 148 – The Making Ontario Open for Business Act Has Arrived

Significant changes to labour and employment laws in Ontario may again be on the horizon.

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Oct 18, 2018
Frustrated by Employee’s Prolonged Medical Absence? Useful Decision on Proving Frustration of an Employment Contract

As employers are likely aware, terminating the employment of an employee who is absent from work for a prolonged period due to disability is a thorny issue. The recent Ontario Superior Court decision in Roskaft v. RONA Inc., 2018 ONSC 2934 (CanLII) (Roskaft) is useful in highlighting the evidence that is required to prove frustration of an employment contract where an employee’s permanent disability makes his or her performance of the contract impossible.

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Ontario Human Rights Commission Posts Q and A on Cannabis and the Human Rights Code

With legalization on Ontario’s doorstep, the Ontario Human Rights Commission has issued a new policy discussing the impact of legal cannabis on human rights issues in the province.  The policy document correctly notes that the legalization of cannabis does not change how employers must respond to impairment and addiction at work but it does highlight the rights of employees with scent sensitivities to be protected from cannabis smoke or vapours in the workplace, which is an area of concern that we expect our clients will hear more about as recreational cannabis use becomes more common. 
 
Helpfully, the policy also specifically acknowledges that employers have no obligation to accommodate an employee’s desire to use cannabis for recreational purposes.
 
A link to the policy document can be found here.
 
For more information about the intersection of legal cannabis and human rights at work or any other workplace issues, please reach out to a member of the Cassels Brock Employment & Labour Group.

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Court of Appeal Restores Distinction Between ESA Minimum Notice Requirements and Common Law Notice

On September 19, 2018, the Ontario Court of Appeal released its decision in Wood v. CTS of Canada Co.. The decision restores the important division between common law reasonable notice and the minimum notice provisions of the Employment Standards Act (ESA).

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Sep 10, 2018
Sometimes Less is More: Requesting Information Regarding a Job Applicant’s Citizenship Status

A recent decision of the Human Rights Tribunal of Ontario (the HRTO) should serve as a caution to employers to limit inquiries into a job applicant’s ability to legally work in Canada only to the extent necessary to establish they are able to do so. In Haseeb v. Imperial Oil Limited, 2018 HRTO 957 (CanLii), the HRTO found that Imperial Oil directly discriminated against Haseeb contrary to the Human Rights Code (the Code) by revoking a job offer because he only possessed a work permit and did not have Canadian citizenship or permanent residency status.

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Deal or No Deal? When is a Final Release Actually Final?

A recent decision of the Ontario Superior Court of Justice illustrates the challenges employers can face when attempting to enforce a signed release. In Swampillai v. Royal & Sun Alliance Insurance Company of Canada, 2018 ONSC 4023 (CanLII), the Court was asked to consider on a motion for summary judgment on whether or not the release signed by Mr. Swampillai at the time of the termination of his employment barred him from pursuing a claim for long term disability benefits. Justice Cavanaugh found that Mr. Swampillai had signed the release under circumstances that were unconscionable and, as such, the release could not prevent him from pursuing a claim for long term disability (LTD) benefits. Mr. Swampillai was thus free to continue his action against his former employer, Royal & Sun Alliance Insurance Company of Canada (RSA) and Sun Life Assurance Company of Canada (Sun Life), who acted as the administrator of RSA’s long term disability benefits program, even though the release signed by Mr. Swampillai specifically cited “long term disability benefits” as a released claim. So what went wrong for RSA? To understand the Court’s decision, we need to review the circumstances that existed at the time that RSA and Mr. Swampillai negotiated the severance package.

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Separating the "Apples" From the "Oranges" – When Can Paid Time Off Benefits Replace Personal Emergency Leave?

On January 1 of this year, Ontario’s Bill 148 officially expanded the reach of the personal emergency leave provisions of the Employment Standards Act, 2000 (the ESA) to not only  require all Ontario employers to grant employees 10 personal emergency leave days (PEL days) per year but to require that the first two such PEL days be paid. For Ontario employers already offering employees related, but not identical, paid time off benefits at the time, this naturally led to a number of critical questions: are we already compliant with the ESA? do we need to change the benefits we offer or how we administer them? do we need to pay even more?

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Ontario Government Announces Indefinite Postponement of New Smoking and Vaping Legislation

Ontario’s provincial government recently announced that the coming into force of the new Smoke-Free Ontario Act, 2017 (SFOA) has been postponed indefinitely to allow time for the new government to re-examine the regulation of vaping.

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Nothing Ambiguous About It - Ontario Court of Appeal Brings Some Clarity to the Interpretation of Termination Clauses

As you will recall, in April of this year, we brought you an e-LERT examining the Ontario Superior Court’s decision in Bergeron v. Movati Athletic (Group) Inc. 2018 ONSC 885 (Bergeron) – a recent decision where the Court nullified a termination clause designed to limit entitlements on termination to the minimums under the Ontario Employment Standards Act, 2000 (ESA). The reason? The clause lacked a “high degree of clarity” and, paraphrasing the Court, could have benefited from the addition of the word “only.” As such, this ambiguity was resolved in favour of the employee plaintiff rather than her employer, the party who drafted the language in question.1

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Jun 27, 2018
Complainant Allowed to Participate in Wrongful Dismissal Claim of Her Alleged Harasser

In an unusual decision, the Ontario Superior Court has allowed a complainant in a workplace sexual harassment investigation to participate in the wrongful dismissal trial of her alleged harasser.

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Bill C-45 Passes in the Senate, Making Cannabis Legal in Canada

By way of a 52-29 vote, the Canadian Senate has now passed the federal government’s bill legalizing recreational marijuana in Canada. It is now up to the federal government to set a date for formal legalization, with provincial governments receiving an eight to twelve week period to prepare for the sale of the drug within their province. The Bill is expected to receive Royal Assent within a matter of days.

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