Some employers include arbitration clauses in their standard form employment agreements as the arbitration process can be a confidential and cost-effective method of resolving legal disputes with employees. However, the recent decision by the Ontario Superior Court of Justice in Rhinhart v. Legend 3D Canada Inc., 2019 ONSC 3296 (Rhinehart), calls into question the enforceability of arbitration clauses in employment agreements. As a result, employers who utilize such should review whether they wish to continue to do so given their limited value in employment relationships.Read Full Article
The Divisional Court’s recent decision in Katz Group Canada Ltd. v. Clarke1 provides helpful guidance to employers on the scope of the duty to accommodate and an employee’s obligation to participate in the accommodation process.Read Full Article
In Colistro v. Tbaytel,1 the Ontario Court of Appeal considered the consequences of an employer’s decision to rehire an employee who had been dismissed from his employment years earlier amidst sexual harassment allegations. Although the decision highlights the risks of placing business interests ahead of the obligation to maintain a harassment-free workplace, it also provides guidance on the potential cost consequences of pursuing inflated damage awards in wrongful dismissal litigation.Read Full Article
On April 2, 2019, the Ontario provincial government passed Bill 66, also known as the Restoring Ontario’s Competitiveness Act (the Act). The law purports to streamline various regulations that apply to businesses in an effort to make Ontario more competitive on the global and national market. The Act amends many different laws in the province but of particular note to Ontario employers are the following changes to the Employment Standards Act, 2000 (the ESA):Read Full Article
In a decision released on March 15, 2019, the Ontario Court of Appeal in Merrifield v. Canada, 2019 ONCA 205 overturned a lower court decision that had recognized an independent tort of harassment in the employment context. The case was brought by a former member of the RCMP who alleged that he had been harassed and bullied by his superior officers after they learned he had run for the nomination to be a Conservative Party of Canada candidate in the 2006 federal election without complying with RCMP regulations and first obtaining the requisite approval to take leave without pay for this purpose. Following a lengthy trial, the trial judge found that the employer was liable both for the existing tort of intentional infliction of mental suffering as well as for a new independent tort of harassment.Read Full Article
Are we ready for this? Many first-time parents ask themselves this very question, especially as their baby’s due date approaches ever nearer. Now, with the federal government’s introduction on March 17, 2019 of its new Employment Insurance (“EI”) Parental Sharing Benefit, many Canadian employers will be joining them in pondering the very same thing. But in their case, the “this” will obviously have less to do with the trials and tribulations of childcare and more to do with navigating the potential rise in parental leave requests many are expecting to follow.Read Full Article
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.Read Full Article
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.
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.Read Full Article
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.Read Full Article
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.Read Full Article
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.Read Full Article
On November 21, 2018, Bill 47, the Making Ontario Open for Business Act, 2018, quickly passed third reading and received royal assent.Read Full Article
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.Read Full Article
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.Read Full Article
Significant changes to labour and employment laws in Ontario may again be on the horizon.Read Full Article
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.Read Full Article
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.
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).Read Full Article
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.Read Full Article
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.Read Full Article