Management Lawyers

One of the most complex issues under Ontario OH&S law relates to determining which party on a construction project is the “constructor” within the meaning of the OHSA.

An Ontario Court recently addressed this issue in the context of a recent prosecution.

Bill 47, the Making Ontario Open for Business Act, 2018, received Royal Assent on November 21, 2018. 

Employers are rightly concerned about the possible impacts of marijuana in the workplace.  We received several insightful, widely applicable questions during the Q&A session at the end of our October 17^th Webinar on the subject.

We have curated a collection of those questions, with our answers in this update.

Ontario’s Conservative government has moved to repeal most of the changes to the province’s employment and labour legislation made by the prior government’s Bill 148.

With the impending legalization of marijuana, our corporate immigration counsel answers the most common questions about legalization and its impact on corporate immigration.

An Ontario court has revolutionized the law with respect to whether an individual can be held personally liable for fines imposed against the corporation for breaches of regulatory legislation.   

Due to excellent participation in our recent Bill 148 Q & A Quarterly Webinar, and popular demand for more information about Personal Emergency Leave (“PEL”), we have answered the most pressing questions from participants in this update.

In response to strong pushback from the business community, the Ontario government has doubled back on recent changes to public holiday pay calculation brought about by Bill 148. 

Bill 148, the Fair Workplaces, Better Jobs Act, received Royal Assent on November 27, 2017. This means that the Bill has passed and is now law.  

The government has proposed Bill 177, vaguely titled budget legislation that includes a number of important changes to OHS law in Ontario, including an increase to maximum fines, an extended limitations period and expanded reporting obligations for employers.

A recent case from the Court of Appeal, reversing a motion judge’s ruling, illustrated the advantage of ensuring that sound employment law advice is obtained prior to a sale of business, and how it can limit the liability inherited by a purchaser.

A recent Court of Appeal decision confirmed that where a termination clause provides less than any one of the minimum entitlements on termination called for in the Employment Standards Act, 2000, it is unenforceable even if there is a clause in the agreement that states any potentially illegal clauses can be struck out while leaving the result of the agreement intact (commonly known as “severability” clauses).

Similar to income tax, the government monitors AODA compliance initially through a self-reporting mechanism. The next compliance report is due to be filed by December 31, 2017. Failure to file a report, or reporting non-compliance with a standard, can result in a range of penalties from inspections, administrative penalties, Director’s Orders, prosecutions and fines. 

Recent Canadian jurisprudence has been quite unfavourable on the issue of liability for bonuses payable after termination of employment. Where employees are entitled to bonus payments during their employment, entitlement to such amounts after termination can be part of their entitlement to pay in lieu of reasonable notice under the common law. A recent case from the Ontario Court of Appeal illustrates that, despite this disappointing trend, the courts will enforce lawful bonus provisions that are drafted clearly and unambiguously.  

Employers are increasingly using termination of employment clauses in employment offers and contracts to reduce the liability they face when terminating employees.   This has been in reaction to increasingly generous awards from the courts.  In turn, the courts have been holding such clauses to a higher level of scrutiny in recent years with the result that many of these clauses have been found to be unenforceable.  The recent case of Wood v. Fred Deeley Imports Ltd from the Ontario Court of Appeal is the latest example of a termination clause that was struck down as unenforceable. 

Any time that an Ontario construction industry employer is targeted by a union’s application for certification, the details are critical.  Filing deadlines are tight and strictly enforced.  The process is heavily reliant on both the union and the employer fully participating and disclosing their knowledge of the workers and worksites at issue. Two recent cases demonstrate the difficulties inherent in the substantial informational requirements foisted on employers who must file a complete response to an application within only two days of receiving it.  

The Ontario Court of Justice recently stayed all charges against several corporate defendants and one corporate director in a regulatory prosecution, applying the new "Jordan Test" outlined by the Supreme Court of Canada.  To our knowledge, this is the first time a corporate defendant has obtained a stay of charges in a prosecution following the new test.

A recent decision by the Ontario Court of Justice confirms that, pursuant to a new framework from the Supreme Court of Canada, corporate defendants DO have the right to be tried in a reasonable time under the Charter in regulatory prosecutions.

Should an employer be found guilty for OH&S violations based on hindsight?

A recent Human Rights Tribunal of Ontario decision provides a rare opportunity to directly draw lessons and best practices for in-house counsel and organizations that have them on staff.

The Ontario Superior Court of Justice recently rejected a company’s argument that different rules should apply to construction workers when it comes to termination entitlements under the common law.

Workplace harassment has been at the forefront of labour and employment law over the past several years, particularly in relation to the employer’s duty to investigate.  The trend continues with the Ontario Government’s recent introduction of Bill 132, the Sexual Violence and Harassment Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016. Bill 132 amends various pieces of legislation including the workplace harassment provisions of the Occupational Health and Safety Act (“OHSA”).

Although the AODA has been around for 10 years, the AODA Accessibility Standards were developed, and are being phased in over time.  The phased in structure is in place to assist organizations with the transition to this new compliance regime. However, often employers, even with the best intentions, get caught by surprise by the timelines for and extent of their AODA obligations.Over the past few years, we have noticed a few common “pitfalls” for employers attempting to be AODA compliant.

2015 was a busy year for those following developments in labour and employment law.  Along with groundbreaking new cases, 2015 also saw legislative changes and the coming-into-effect of new regulatory regimes.  This is our list of the top 10 developments in this area of law for 2015.

The Ontario Workplace Safety and Insurance system is about to undergo one of the most important changes in decades. The Workplace Safety and Insurance Board (“WSIB”) is preparing to completely eliminate the current experience rating programs (NEER, CAD-7 and MAPP) for Schedule 1 employers.

Since 2008, Courts have wrestled with wrongful dismissal claims in which employees make claims of entitlements to damages beyond reasonable notice.  One of these categories is punitive damages.  Punitive damage claims are usually found where there are allegations of bad faith or vindictive treatment.  Traditionally, such awards were handed out rarely, in cases viewed by the Courts as among the worst.  However, recently Courts have been more inclined to hand out these damages, and in increasing numbers.  A recent decision from the Ontario Superior Court of Justice is a prime example of this trend.

The Canadian Government has announced further changes to the foreign worker system that come into effect on December 1, 2015. These changes stem from the complete overhaul of the temporary foreign worker regime that began over a year ago. The new compliance regime will apply to both foreign workers under the Temporary Foreign Worker Program (i.e. where a Labour Market Impact Assessment (“LMIA”) is required) as well as those in the International Mobility Program (i.e. LMIA exempt categories like intra-company transferees).

Does a terminated employee have a duty to accept an offer of re-employment after termination? This issue was recently considered by the British Columbia Court of Appeal in Fredrickson v Newtech Dental Laboratory.

Recently, the Ontario Government provided new details regarding the Ontario Retirement Pension Plan

A recent case from the Alberta Court of Appeal sheds light on how Canadian courts will treat post-termination evidence of drug dependency where an employee, in denial about his dependency, in a safety sensitive position is terminated for a workplace accident.

The tragic Christmas Eve 2009 swing stage collapse which led to the deaths of four workers and the serious injury of another at a west Toronto construction site continues to have legal repercussions and break new ground in health and safety law. The Superior Court of Justice has just released one of the most significant decisions ever decided under the Criminal Code in the context of OH&S.

In recent months, the Ontario Court of Justice has issued a number of decisions which shed some light on the level of due diligence required to successfully defend OH&S prosecutions.  In this update, we will provide insight on the latest decisions from the Courts and what they mean for employers from a compliance perspective.

Counsel for terminated employees frequently plead as part of their claim that employees with long service should receive a notice period that bridges them to retirement. However, the issue is seldom actually considered by the courts. In Arnone v. Best Theratronics Ltd., the Ontario Court of Appeal rejected the argument that an employee’s notice period should automatically extend to retirement

We have written before on the decision of the Federal Court of Appeal in Johnstone v Canada (Border Services) (see our update here), which helpfully crafted a clear and balanced test for family status discrimination in the context of childcare (the “Johnstone Test”).  The Ontario Superior Court has released the first reported decision in Ontario to apply the “Johnstone Test” in the context of a wrongful dismissal action.

In 2014 we saw some significant changes to Canadian labour and employment law.  New judicial decisions and statutes changed longstanding legal principles, and employees and their counsel attempted to use new mechanisms to vindicate their claims. We have selected the following top ten developments from 2014 with which all human resources professionals should be familiar.

Private sector employers must file an Accessibility Report by December 31, 2014 pertaining to compliance with the Accessibility for Ontarians with Disabilities Act, 2005 (the "AODA"). The Ontario Government is taking extra steps to ensure that employers are aware of this upcoming reporting obligation, and we anticipate that it will be more active with respect to compliance measures for those organizations who fail to file Accessibility Reports.

The Court upheld a significant award of damages for constructive dismissal because the employer did not offer to continue to employee the employee after it made a change to the terms of employment. The Court made clear that employers must actually make an offer of continued employment after the employee refuses to accept a change in the job.

The recent Supreme Court decision in Sattva Capital Corp v Creston Moly Corp  signifies a major shift in the judicial approach to contract interpretation.  Although the case itself dealt with a dispute over mining rights, the reasons of the Court will likely have far-reaching repercussions, including in labour and employment matters.

The Temporary Foreign Worker program continues to be under fire in the media, and the Government has released some new and significant changes. Employers should pay careful attention as some of these changes are effective immediately.

Canada's new anti-spam legislation (CASL) exposes new vulnerabilities for employers.

A recent French language decision from the Ontario Superior Court of Justice indicates that more employers could be subject to liability for an employee entitlement often relegated to the role of afterthought: severance pay.

The Supreme Court of Canada has ruled that Walmart violated the statutory freeze in Québec's labour legislation when it closed a store following a successful organizing drive and failed negotiations.

Heightened vigilance is the order of the day.  In the wake of a recent decision of the Ontario Superior Court, employers who fail to properly watchdog confidential information accessible to employees may face significant vicarious liability for those employees’ unlawful access and use.

Human Rights Tribunals across the country have been issuing damage awards which have raised the eyebrows of the employer community, especially as many exceed what a court would likely award.

Ontario's Court of Appeal has reduced the record $1Million punitive damages awarded at trial in Boucher v. Wal-Mart.

In one of the most significant decisions in recent memory, the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) has declared that most of the legal restrictions placed on Workplace Safety and Insurance Board traumatic mental stress claims are unconstitutional.  

A recent case from Ontario’s Human Rights Tribunal is a stark reminder of how important record keeping can be when managing employee performance and productivity issues.

This recent decision in a claim arising from the tragedy at Elliot Lake should be noted by employers as it may have an impact on how workplace health and safety inspections and investigations are conducted in the future.

Recent decisions across several jurisdictions have made it clear that employers must be attentive to the emerging ground of "family status" discrimination or risk exposing themselves to significant liability.

The Ontario Government has proposed legislation which would dramatically alter the legal landscape with respect to the obligations of employers when they use temporary agency workers.  Bill 146 also broadens the definition of “worker” under the Occupational Health and Safety Act, broadens the notification requirements for employers who hire foreign workers and makes it more difficult for unionized construction workers exercise their freedom of choice to decide whether they still wish to be represented by a trade union.

A recent sentencing decision involving the owner of a small roofing company suggests that the Courts may be shedding their historical reluctance to impose jail terms in OHSA cases.

The Canadian courts, especially appellate courts, have consistently taken a conservative, cautious approach to awards of punitive damages in employment law cases. Recent high-watermark awards suggest a disturbing trend toward larger, US-scale punitive awards. But on closer inspection, perhaps, the trend is less disturbing than meets the eye.

The Federal Government has announced new changes this year to the Temporary Foreign Workers Program that will make it increasingly more difficult for Canadian employers to hire foreign workers on a temporary basis.

The Ontario Court of Appeal has sent a clear message that employers convicted of criminal negligence can expect to receive a very substantial penalty.

The next phase of compliance with the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) is fast approaching.  Many of the substantive obligations are being phased in over the next several years. It is important to pay attention to these rolling deadlines so that you do not find yourself non-compliant and playing catch-up.

To be enforceable, non-competition agreements must, as a general rule, be reasonable and unambiguous in terms of their geographic scope, the types of activities proscribed, and duration.  If an agreement is ambiguous, or if it is overly restrictive in any respect, the entire agreement is usually unenforceable. Courts will not re-write agreements or read-out offensive language.  They just strike the whole agreement down.

Employers should quickly take advantage of recent developments in the Federal Skilled Trades Program.  A limited number of applications will be accepted each year.

The Ontario Court of Appeal has overturned the Blue Mountain accident reporting decision.

A recent decision by the Ontario Labour Relations Board (“Board”) has just made these considerations more treacherous and the process of costing innovative construction projects more difficult.

For years the term “Right to Work” state has been synonymous with jurisdictions in the American South, where unions have traditionally been weak and unwelcome.  Few would have believed that the home of the unionized American auto industry, Michigan, would also one day become a right to work state.  But that has just happened.  Winds of change are sweeping the American labour landscape.  Could these winds shift north and propel Ontario to become a right to work province? 

The Ontario Government has released a draft of the proposed Built Environment Standard provisions for public spaces.

The Ontario Court of Appeal (ONCA) has quashed an arbitration award which upheld a just cause termination.  The Arbitrator found the employer had just cause to terminate an employee when his physician delivered a medical note late.  Employers may take guidance from the decision when dealing with unionized and non-unionized employees.

The decision of the Human Rights Tribunal of Ontario in Sean Carter v. Neurologic Rehabilitation Institute of Ontario (2011) shows the importance of medical notes in human rights cases and how medical documentation will often not be sufficient to support a disability or an obligation to accommodate on an employer’s part.

A release of claims signed by an employee upon termination has been struck down by the Ontario Superior Court as unenforceable. Such releases are rarely struck down by the courts. This case could signal that the courts will in the future hold employers to a higher standard than in the past in deciding whether or not such releases will be enforced.

Recently, the Ontario Court of Appeal recognized a new tort related to privacy rights, that is, “intrusion upon seclusion”.

Hire a contractor and you may inadvertently face liability as a “constructor” under Ontario’s Occupational Health and Safety Act (Act) for violations and accidents involving subcontractors and their employees. Recent court decisions have clarified the law substantially.

Employers can no longer assume that, regardless of their age and length of service, junior employees will always receive less notice than senior employees who are otherwise similarly situated.

Putting Figliola in context: An in-depth analysis of this watershed Supreme Court of Canada decision and the positive effect on employers' litigation arsenal.

A recent Supreme Court of Canada case illustrates how concurrent jurisdiction over human rights issues can lead to prolonged and expensive re-litigation of human rights issues.

Summary: Controlling Costs in Defending Human Rights Complaints - Joe Morrison

Summary: Employer Hit Hard for Discontinuing Disability Benefits Shortly After Termination - Landon Young

Summary: Labour & Employment Law Update 2011 - Conference Brochure

Summary: Does the Right to Remain Silent Apply in Ministry of Labour

Summary: Business Visitor Status-What Every International Organization Needs To Know - Kelly McDermott

Summary: Releases Protect Employers from Human Rights Complaints - Landon Young and Jessica Young

Summary: Compliance with the new Employment Standard under AODA - Jessica Young

Summary: Accessibility for Ontarians with Disabilities Act: How the Integrated Accessibility Standards Will Affect You - Jessica Young

Summary: Ontario Court of Appeal Rules Non-Competition Clause Unenforceable - Allison Taylor

Accessibility for Ontarians with Disabilities Act: What Employers Need to Know Now - Jessica Young

Summary: Continuing to Work Following Changes to Employment Not Considered Acceptance of Changes - Joe Morrison

Summary: Bill 160 Proposes Significant Amendments to the Occupational Health and Safety Act and Workplace Safety and Insurance Act - Ryan Conlin

Summary: Discrimination Case Reversed by the Courts: Are we Entering a New Era? - Allison Taylor

Summary: Tony Dean Panel Report Proposes Sweeping Reforms to Ontario OH&S Law - Ryan Conlin

Summary: Stir the Sleeping Giant: Remedial Certification Rears its Head in 2010! - Jeff Murray & Kelly McDermott

Summary: Don't Forget to Consider "Consideration" - Jeremy Schwartz

Summary: WSIB Experience Rating Retrofit - Ryan Conlin

Summary: WSIB Return to Work Decisions: Are they Binding on the Human Rights Tribunal? - Ryan Conlin

Summary: Alberta Human Rights Tribunal Awards Employee $650,000 - Kelly McDermott

Summary: Significant Changes to the Human Rights Tribunal's Rules - Kelly McDermott and Jeremy Schwartz

Summary: Bill 168 is Now Law: New Workplace Violence Duties Take Effect - Landon Young

Summary: Avoiding Substantial OH&S Liability when Hiring Contractors - Jeremy Schwartz

Summary: Rehiring Former Employees: Avoiding the Risk of "Continuous Employment" - Allison Taylor

Summary: Obese Resident Awarded Preferred Parking Space - Jeremy D. Schwartz

Summary: New Workplace Violence Duties Coming Soon - Landon P. Young

Summary: Hypothetical Standards: Human Rights Tribunal finds Police Liable for Racism - Jeremy Schwartz

Summary: Taking the Panic out of Pandemic Planning - Ryan Conacher

Summary: Are the Floodgates Opening for WSIB Mental Stress Claims? The Latest Word from the Courts - Ryan J. Conlin

Summary: Strike Two: Ontario Court of Appeal Slams Imperial Oil's Random Drug Testing for the Second Time in Nine Years - Jeffrey Murray and Ryan Conacher

Summary: Responding to Human Rights Harassment Complaints: Guidelines from the HRTO - Jeremy Schwartz

Summary: Who is a Supervisor under the OHSA? The latest word from the courts - Ryan J. Conlin

Summary: Class Action for Unpaid Overtime Derailed: Is this the End of High-profile Overtime Class Proceedings? - Landon Young and Ryan Conacher

Summary: Reporting Obligations Expanded: Labour Board Rules that Employers Must Report Critical Injuries to Non-Workers - Ryan J. Conlin

Summary: WSIB Imposes Sweeping New Re-Employment Obligations in the Construction Industry - Ryan Conlin

Summary: A Primer on Temporary Foreign Workers - Part 1: Mastering the Labour Market Opinion Application - Nadia Pazzano and Ryan Conlin

Summary: Employers Not Liable for Tort of Negligent Investigation - But... - Jeffrey Murray and Jeremy Schwartz

Summary: Take It or Leave It: How NOT to Change Terms in an Employment Contract - Greg McGinnis and Jeremy Schwartz

Summary: Workers' Compensation and Workplace Violence: Exploring the Protective Umbrella of the NO-Fault Scheme - Nadia Pazzano and Ryan Conlin

Summary: Don't Read This Article. Post the New Employment Standards Act Poster!

Summary: Courts Refuse to Restrain Former Salesperson from Competing - Greg McGinnis and Jeremy Schwartz

Summary: The Proposed New WSIB Early and Safe Return to Work Regime: Navigating the Waters - Ryan Conlin

Summary: Discipline for Employees Convicted or Acquitted of Criminal Offences: Courts Weigh In - Greg McGinnis and Jeremy Schwartz