Employment-Related Legislation
In April 2021, the Government of Ontario introduced the Worker Income Protection Benefit (the “WIPB”), providing up to three days of paid leave to address COVID-19 related matters. An eligible employer may apply for reimbursement for this paid leave from the Workplace Safety and Insurance Board. The WIPB is set to end July 31, 2022.
Ontario was not the sole jurisdiction that responded to the past two years with paid sick leave. In British Columbia, as of January 2022, an eligible employee may be entitled to up to five paid days off work to address illness or injury.
At the federal level, the Government of Canada increased the number of paid sick days available for employees governed under the Canada Labour Code from the existing number of five to ten. While the bill enacting this change has received Royal Assent, the number of sick days has not been increased while discussions with unions and other groups affected by the change continue.
Significantly, unlike in Ontario, the paid sick leave provided in British Columbia and for Federally-regulated employees is for any reason, and is not limited to COVID-19 related matters. Further, the changes in British Columbia and federally are permanent – unlike the WIPB, the days of which are currently numbered. The WIPB does stand apart from the rest in that under this program the employer
On December 2, 2021, Bill 27, the Working for Workers Act became law, and led to a significant number of changes to the Act:
- Requiring that every employer with over twenty five employees implement a policy on disconnecting from work, which means the employee must not engage in any work-related communications when not at work. For now, this is the extent of the information the Government of Ontario had distributed regarding a “disconnect” policy. With luck, further details will emerge – Rudner Law continues to monitor these developments closely and will write about these.
- Banning non-compete agreements, with exceptions for a c-suite position (CEO, CFO, COO, etc.). The Ministry of Labour and the Ontario Superior Court of Justice have confirmed that this prohibition does not apply to a non-compete agreement entered into before October 25, 2021. This statutory provision largely mirrors the common law, which has long held that a non-compete agreement is void as an unnecessary restraint on trade – again, with some limited exceptions.
- Requiring assignment employers to obtain a licence through a system to be established.
On December 7, 2021, the Government of Ontario also announced an extension of the COVID-19 period under the Act to expire on July 30, 2022.
Developments in the Courtroom
In 2021 the Court provided further insight into a broad range of employment-law related matters, including additional considerations to calculating reasonable notice, enforcement of the employment contract, application and meaning of statutes, and harassment.
Reasonable Notice and Employer Obligations on Dismissal
The factors impacting an employee’s entitlement to reasonable notice, and the employer’s obligations throughout the employment relationship continue to be clarified by the Courts.
Pregnancy Is A Factor In Assessing Reasonable Notice
The Court confirmed that an employee’s pregnancy at the time of dismissal is a factor it will consider in determining the employee’s entitlement to reasonable notice in Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455. Read our blog post on this case here.
Employer Obligations Continue Through The Dismissal
We usually focus on potential damages for bad faith when an employer behaves inappropriately. In Humphrey v. Mene, 2021 ONSC 2539, the Court ruled that an employer who fails to treat an employee with dignity and in good faith cannot rely on a termination clause that would otherwise be enforceable.
Employer Obligations On Dismissal Include Outlining Severance
The employer’s obligation regarding how to treat an employee extends to providing a clear understanding of the employee’s entitlements on dismissal. In Russell v. The Brick Warehouse LP, 2021 ONSC 4822, the employer’s failure to do so led to the Court awarding $25,000.00 in moral damages in addition to the employee’s entitlement to reasonable notice.
The Employment Contract
The employment contract continues to impact employment law decisions – and the law around this continues to evolve.
What Constitutes Notice of a Contract?
Advising an employee of the unambiguous provisions of a contract in writing, via information on a computer is sufficient to constitute written notice of these provisions, as confirmed by the Court of Appeal for Ontario (the “ONCA”) in Battiston v. Microsoft Canada Inc., 2021 ONCA 727. This was a welcome reversal of the trial decision, which suggested that employers had an obligation to explicitly call an employee’s attention to specific clauses in order to rely on them, even if the clauses were clear. Read our blog post on this case here.
Waksdale Upheld and Followed – Many Termination Clauses will Fall
The ONCA’s 2020 decision in Waksdale v. Swegon North America Inc., 2020 ONCA 391 continues to make waves. In early 2021 leave to appeal this matter to the Supreme Court of Canada was denied – the holding in the case remains the law. Read our blog post on this case here.
Sophistication Overrides the Law
Sophisticated employee who received independent legal advice was enough for the Court to uphold an otherwise invalid termination clause in Rahman v. Cannon Design Architecture Inc., 2021 ONSC 5961. Read Stuart’s article on the case here.
However, Waksdale Still Holds the Field
The Court subsequently released decisions which followed the holding in Waksdale to strike a termination clause which violated the Act. In both Livshin v. The Clinic Network Canada Inc., 2021 ONSC 6796 and Campbell-Givons v. Humber River Hospital, 2021 ONSC 6317 the Court noted that the party’s level of sophistication was irrelevant to the application of the analysis and factors in Waksdale.
Waksdale continues to be the law – and Rahman is likely to be appealed.
Employment Statutes and the Law
The meaning and impact of statutes relating to employment law continues to evolve as the Courts review and apply these statutes.
Calculating an Employer’s Severance Obligations
Whether an employer is a severance employer is based on its global payroll, and is not limited to its payroll in Ontario, as per Hawkes v. Max Aicher (North America) Limited, 2021 ONSC 4290. Watch Brittany’s video blog on this case here.
Constructive Dismissal via Workplace Harassment
In Morningstar v. WSIAT, 2021 ONSC 5576 the Ontario Superior Court of Justice, Divisional Court found that the Workplace Safety and Insurance Act (the “WSIA”) does not block a claim of constructive dismissal for chronic mental stress that had been caused by bullying and harassment at work.
Expansion of Occupational Health and Safety Act Obligations for Employers
In Ontario (Labour) v. Sudbury (City), 2021 ONCA 252, the Court of Appeal for Ontario found the City of Sudbury responsible under the OHSA as owner and employer despite having retained third-party contractors for the project, creating increased obligations and legal exposure.
Unauthorized Overtime Must be Compensated
In RBC Insurance Agency Ltd. Agence D’Assurances RBC Ltee v Shahzad Ali, 2021 CanLII 44090 (ON LRB), the Ontario Labour Relations Board confirmed that an employer must compensate an employee for unpaid overtime where the employer reasonably ought to have known the overtime was being worked.
Gig Employees Move Forward
In Heller v. Uber Technologies Inc., 2021 ONSC 5518, the Ontario Superior Court of Justice certified a group of Uber drivers and delivery people as a class, permitting the overall class action to proceed.
Director’s Personal Obligations in Wrongful Dismissal
In Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, the Court of Appeal for Ontario confirmed that an employee could seek unpaid wages personally from a corporate director in a wrongful dismissal case.
Developments in Harassment Law
The law surrounding harassment and bullying saw several developments.
Internet Harassment is Now Tortious
In Caplan v. Atas, 2021 ONSC 670 the Ontario Superior Court of Justice confirmed the existence of the tort of internet harassment in instances where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.
Failure to Apologize for Sexual Harassment is Cause to Dismiss
In Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Court of Appeal for Ontario upheld the just cause dismissal of an employee for the employee’s refusal to apologize for having sexually harassed one of his colleagues.
The Year Ahead
Hundreds of cases are now before the courts regarding vaccine mandates and COVID-related dismissals, both direct and constructive. Whether refusal to comply with a vaccine mandate constitutes just cause for dismissal remains to be seen – in both the union and non-union settings. A clear, binary answer is unlikely; more probable is that the Court will provide, through various cases, a set of factors to be considered to assist in determining whether it was reasonable for an employer to require its employees to comply with a vaccine mandate in the specific circumstances.
The Court of Appeal for Ontario may provide some finality as to whether a reduction in hours or income pursuant to IDEL was a constructive dismissal at law. This could have far-reaching implications for businesses across Ontario who, when faced with a global pandemic and consequent emergency order, had little to no choice in what to do aside from close up shop or seriously restrict their operations. In this respect, the IDEL was a boon, by providing each business with a means to address the expense of their employees’ salaries. If every business which placed its staff on IDEL is now faced with the prospect of a claim of constructive dismissal at common law, the financial impact could cause a serious and negative impact on the economy as a whole.
Hopefully we will see some direction from the courts on these and other issues, and additional guidance from the legislature on initiatives such as the right to disconnect.
At a societal level, hopefully the prevalence of the COVID-19 virus will diminish, though we expect that some consequences of the pandemic, such as the rise of remote and hybrid workforces, will continue to impact our society as we move forward.
What has not changed is that much of our work is the result of people making assumptions about their rights instead of informed decisions, and the failure to treat employment relationships as the legal relationships they are. These have led to our commonly-uttered phrase:
“If you think you might need an employment lawyer, you probably do”.
We will continue to work with new and existing clients to help them understand their rights and obligations and to make proactive, strategic decisions. As always, whether it is an issue related to Covid-19 and the workplace, or something else entirely, our team is available to help.