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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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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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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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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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Termination of Benefits Coverage at Age 65 Declared Unconstitutional

This decision has been anticipated for quite some time. Although the Ontario Human Rights Code (Code) was amended to remove the upper limit on age discrimination and prohibit mandatory retirement in 2006, discrimination in connection with benefit and pension plans based on age continued to be permitted by the Code and the Benefits Regulation under the Employment Standards Act, 2000 (ESA). These distinctions were rationalized based on advice from insurers and independent studies that pension and benefits plans would suffer because of the costs increases expected to be associated with providing coverage for older workers.

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Legislation Governing Police Record Checks by Ontario Employers Coming Into Force

Almost three years after the Ontario legislature unanimously passed the Police Record Checks Reform Act, 2015 (the Act), it will come into force on November 1, 2018, making Ontario the first province in Canada to establish a comprehensive legislative regime governing police record checks.

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Back to the Drawing Board: Ontario Returns to Old Public Holiday Formula

The Ministry of Labour has announced that, as of July 1, 2018, public holiday pay entitlements in Ontario will be calculated using the formula that existed prior to the enactment of the Fair Workplaces, Better Jobs Act, 2017 (FWBJA). Many commentators - including the authors of this blog - had noted that the new formula contained in the FWBJA resulted in a significant windfall for casual employees and arguably unjustified costs for Ontario employers. The Ministry of Labour has responded to these concerns by reinstating the old public holiday rules on an interim basis while it reviews how to simplify public holiday pay entitlements under the Employment Standards Act, 2000 (the ESA).

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Ontario Passes Pay Transparency Legislation Imposing New Obligations on Employers

On April 26, 2018, the Ontario government passed Bill 3, the Pay Transparency Act, 2018. The Pay Transparency Act, 2018 imposes requirements for employers relating to the disclosure of information about the compensation of its employees and prospective employees for the purpose of promoting “gender equality and equal opportunity” in employment. The new legislation follows on the heels of the Ontario government’s recent amendment to the Employment Standards Act, 2000, which came into effect on April 1, 2018, and requires employers to provide equal pay for part-time, temporary and seasonal employees who perform the same job as full-time employees. (Find our previous blog post on Bill 148 here.)

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If Only It Read "Only" – Ontario Court Nullifies Termination Clause then Proposes a Corrected Version

While the Ontario Court of Appeal has had a number of occasions in the last couple of years to weigh in on the question of what makes for an enforceable termination provision in an employment agreement, whether it has in any way stemmed the flow of litigation in this area is a matter of some debate.

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Court Confirms that Employers Can Impose Changes in Terms of Employment Upon Provision of Reasonable Notice

In Lancia v. Park Dentistry, 2018 ONSC 751, the Ontario Superior Court found that an employee who resigned after her employer provided 18 months’ notice of changes to certain terms of her employment and a signing bonus had not been constructively dismissed.

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Ontario Government Introduces Further Protections for Temporary Help Agency Workers

An amendment to Ontario’s Workplace Safety and Insurance Act, 1997 (WSIA) that expands liability for injuries sustained by temporary help agency employees has been proclaimed into force.

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Ontario Court Rules Allegations of Workplace Sexual Harassment are “Not Connected to Employment,” Not Covered by Release

A recent decision of the Ontario Superior Court highlights the importance of including a comprehensive release in any separation package offered to an employee upon dismissal, particularly in the context of the #metoo movement where workplace sexual harassment has become a top concern for employers.

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