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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

(Likely) Coming Soon to a Federally Regulated Workplace Near You – Flexible Work Arrangements

Posted in Accommodation, Accommodation, Family Status, Federally Regulated Employers, Flexible Work Arrangements
Patrick Pengelly

The Federal Government has pledged to amend the Canada Labour Code to allow federally regulated workers to formally request flexible work arrangements from their employers, noting that a statutory right to request flexible work arrangements would align with existing obligations under human rights law (e.g. family status protections around an employee’s childcare obligations).

Following this pledge, the Federal Ministry of Employment, Workforce Development and Labour recently published a discussion paper on the topic, and announced that it will be conducting public consultations about flexible work arrangements, including flexibility around work schedules, hours of work, location or work, leaves, and rest periods.  The consultations are focused on the implementation of such arrangements – that is, the Federal Government has been clear that these consultations “are an important step” in eventually legislating the right to request flexible work arrangements.

The Government has also pledged to engage workers, employers, labour and employer organizations, academics, experts, and other organizations “concerned about work-life balance”.  At this point, these proposals are in the early stages and many details remain to be seen – for example, the circumstances in which an employer may decline an employee’s request for flexible work arrangements (e.g. for good business reasons), or whether certain employers may be exempt (e.g. small businesses).

We will continue to monitor these developments.  In the interim, if you have any questions about flexible work arrangements and employers’ existing obligations vis-a-vis the same, please contact any member of the Labour & Employment Group at McCarthy’s.

Are the Tides Finally Turning? Ontario Court of Appeal Upholds Termination Provision Providing Only for “Notice” Under the ESA

Posted in Contractual Termination Provisions, Employment Agreements, Employment Standards, Termination
Sean Porter

In a recent case, Oudin v Centre Francophone de Toronto (“Oudin”), the Ontario Court of Appeal has offered potential relief to employers whose contractual termination provisions provide an employee with only his or her minimum “notice” entitlement under the Employment Standards Act, 2000 (the “ESA”).

The State of the Law Prior to Oudin

As a general principle, if an employer wants to limit an employee’s entitlements upon a without cause termination to the minimums established by the ESA, the contractual provision must ensure that the employee will be provided with at least their ESA minimum entitlements to notice, severance and benefits continuance. If a court finds that a provision may provide an employee with less than these ESA minimums (including by virtue of having failed to explicitly address ESA entitlements such as benefits continuance and severance), it will likely find that the parties have illegally attempted to contract out of the ESA and will deem the contractual provision unenforceable, resulting in the employee being entitled to common law notice, which is almost uniformly well in excess of the ESA minimums.

For example, in Stevens v. Sifton Properties Ltd., the Ontario Superior Court of Justice considered a termination provision that provided: “The Corporation may terminate your employment without cause at any time by providing you with notice or payment in lieu of notice, and/or severance pay, in accordance with the Employment Standards Act of Ontario.” The Court found that this provision was void because it failed to address the employee’s right to benefits continuation during the notice period.

The Court of Appeal’s Shift in Oudin

In this case, which was an appeal to the Court of Appeal from a decision of Dunphy J., the termination provision in Mr. Oudin’s employment agreement allowed the employer to terminate him with the greater of 15 days’ notice or the minimum “notice” required by the ESA. The provision did not explicitly address benefits continuation or severance entitlements under the ESA. The employee argued that it was therefore unenforceable.

The motion judge at the original summary judgment motion rejected this argument and found in favour of the employer, deciding that the intent of the contractual termination provision was to provide the employee with (all of) his ESA entitlements and that a reasonable interpretation of the provision supported that.

On appeal, the employee argued that the motion judge erred by failing to consider that the termination provision only provided for “notice” and was therefore contrary to the ESA. The Court of Appeal rejected this argument and affirmed the motion judge’s decision.

Notes for Employers

Given that this is a departure from prior lower court decisions, employers should still be cautious and ensure careful drafting of termination provisions to explicitly address ESA benefits and severance entitlements in addition to “notice”.  However, this case does provide a helpful precedent that employers and employer counsel should be aware of when addressing claims from employees who are challenging the enforceability of such provisions.   It is too early to say whether this will “turn the tide” against previous lower court decisions, but the weight of this decision coming from the Ontario Court of Appeal will hopefully influence lower courts not to view the failure to explicitly invoke the “magic words” of notice, severance and benefits continuance as fatal to the enforceability of termination provisions.

If you have any questions about this decision or about the enforceability of your contractual termination provisions, please reach out to the members of the Labour & Employment Group at McCarthy’s.

The Ongoing Pursuit of Accessibility in Ontario – Amendments to the AODA Effective July 1, 2016

Posted in Accessibility, Accommodation, Accommodation, Disability, Human Rights
Kate McNeill-Keller

Ontario’s commitment to promoting and advancing accessibility for persons with disabilities is continuing, with amendments to the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) scheduled to become effective on July 1, 2016.

Under the current legislation, the requirements for employers and businesses operating in Ontario are split between O. Reg. 429/07 – Accessibility Standards for Customer Service and O. Reg. 191/11 – Integrated Accessibility Standards (Information and Communication, Employment, Transportation and Design of Public Spaces). Effective July 1st, these two regulations will be consolidated into a single Integrated Accessibility Standards regulation through amendments contained in O. Reg. 165/16.

Many of the changes that will be coming into effect serve to clean up and streamline the existing legislation and in particular, to align the requirements of the Customer Service Standards with those set out in the Integrated Accessibility Standards on issues such as:

(a) the definition of “small organization”, which will apply to organizations with at least one (1) but fewer than fifty (50) employees in Ontario, other than the Government of Ontario, the Legislative Assembly or a designated public sector organization (previously, a “small organization” under the Customer Service Standards had a threshold of at least one (1) but fewer than twenty (20) employees in Ontario);

(b) the application of the customer service related requirements to the provision of goods, services and facilities (previously only goods and services); and

(c) the requirement to provide documents in an accessible format or with the use of communications supports upon request, which will be a consistent requirement across all standards.

In addition to the “alignment” changes noted above, employers should make note of the following substantive changes that may impact their workplaces and their existing AODA compliance programs:

  1. Service Animals – Previously, the AODA required a note from a physician or nurse to certify a service animal. The legislation will be amended to include an expanded list of regulated health professionals who may certify a service animal, including psychologists, psychotherapists, audiologists, speech-pathologists, chiropractors, nurses, occupational therapists, physicians, optometrists, and mental health therapists, thereby facilitating easier access to such certification for persons with disabilities.
  2. Training – Previously, under the old Customer Service Standards, only those persons who provided goods or services to the public or other third parties had to be trained under the AODA. Going forward, all employees, volunteers and other persons who provide goods, services or facilities on behalf of the organization, as well as all persons involved in policy development, must undergo AODA customer service training (along with all other AODA training).
  3.  Support Persons – Previously, an organization could require a person with a disability to be accompanied by a support person where necessary to protect health and safety. Under the amendments, prior to requiring a support person, the organization will be required to consult with the person with a disability and must consider and assess whether there is actually a health and safety concern associated with their being unaccompanied. Organizations will only be permitted to require the presence of a support person if there is no other reasonable way to ensure the health and safety of the person with a disability and/or others on the premises. If a support person is required, the organization will have to waive any applicable admission fee or fare for that person.
  4. Documentation – Given the change to the definition of “small organization”, private sector employers with less than fifty (50) employees in Ontario will no longer be required to document in writing their customer service policy or make it publicly available, or to maintain training records. If you fall into this category and already maintain such a policy and records, consider whether it may be a best practice to continue to do so.
  5. Feedback – Under the amendments, existing customer service-specific feedback mechanisms will be required to solicit feedback on the accessibility of the process itself and any alternate means provided for under that process.

We recommend that all organizations review their existing AODA programs (including policies and training programs) to ensure that they comply with these amendments and, where applicable, update their multi-year accessibility plans to address the changes.

If you have any questions with respect to the changes, please contact any member of the Labour & Employment Group at McCarthy’s.

An Expanded Canada Pension Plan (and a Very Questionable Future for the Ontario Retirement Pension Plan)

Posted in CPP, Pensions
Mark FirmanJennifer Del Vecchio

The Ontario Retirement Pension Plan (ORPP) seemed like a sure thing—until it wasn’t.

Yesterday, Bill Morneau, the federal Minister of Finance, and eight of ten provincial finance ministers did what many to this point thought was impossible: reach an agreement in principle to expand the Canada Pension Plan (CPP).

The agreement represents the first significant increase to CPP benefits since the program’s creation in 1965. It will affect almost all employers in Canada with employees outside Quebec.

While it looks likely that the agreement in principle will translate to formal finalization, many details remain to be released publicly. We are continuing to monitor.

Here is what we know so far—and what this means for the future of the ORPP.

Proposed CPP Expansion

  • CPP benefits will be increased, with an aim to replace an individual’s pre-retirement income from one-quarter to one-third of pensionable earnings (likely subject to a limit).
  • Employer and employee contributions will be increased, by about $7 per month in 2019 for an average worker earning $55,000, and thereafter according to a schedule that has yet to be finalized (B.C. has published a summary schedule here).
  • The Year’s Maximum Pensionable Earnings (YMPE), which is the maximum annual income subject to CPP contributions and accruals, will be increased by 14% to approximately $82,700 by 2025 (from the current $54,900 in 2016).

These CPP changes are proposed to come into effect on January 1, 2019 and phased in gradually over seven years. The increase to employer and employee CPP contributions will be phased in over five years, beginning January 2019. The increase to the YMPE will be phased in over two years, presumably beginning in January 2024.

As well, in conjunction with the CPP changes, the federal government announced the following two tax changes:

  • an increase to the Working Income Tax Benefit, a refundable tax credit for eligible low-income working individuals and their families; and
  • a new tax deduction for employee contributions associated with the enhanced portion of CPP (a tax credit—but not a deduction—is currently available for employee CPP contributions).

Although it did not sign the agreement in principle, Quebec publicly supported the CPP enhancements and announced that it will consider enhancing the Quebec Pension Plan. Manitoba also did not sign the agreement in principle, but will be bound by the result if the other provinces agree.

Doubtful Future of the ORPP

The Ontario government developed the ORPP in response to the prior Conservative federal government’s public statements that it would not support changes to the CPP.

However, since the ORPP’s inception, the Ontario government consistently hinted that it would abandon the ORPP if CPP reform became realistic in the future. We are now living in that future. In a joint federal-Ontario release, federal Finance Minister Bill Morneau and Ontario Finance Minister Charles Sousa committed that the agreement in principle must be approved by all signatories no later than July 15, 2016. This statement, as well as other comments, strongly suggest that, provided the CPP enhancements are finalized by July 15, Ontario will scrap the ORPP entirely.

Next Steps

Employers should now consider how to address the increased payroll costs of an expanded CPP and whether amendments to their own pension and other retirement plans will be required to accommodate the more generous CPP benefit.

Many private pension plans provide offsets against CPP contributions and benefits, but the wording of these plans may not automatically track changes to the CPP like the ones just announced. If amendments are needed, employers should consider their powers of amendment under their plans as well as common law and contractual advance notice requirements.

If you have any questions with respect to these important developments, please contact the members of our Pensions & Benefits Group.

New Paid and Unpaid Leaves Proposed for Ontario Employees

Posted in Accommodation, Accommodation, Leaves of Absence, Occupational Health and Safety, Sexual Violence, training
Matthew Demeo

Last month, the Government of Ontario introduced two bills which would provide for new leaves under the Employment Standards Act, 2000 as well as new training obligations under the Occupational Health and Safety Act.

Leave proposed for grieving parents

On March 8, 2016, the Government introduced Bill 175, Jonathan’s Law (Employee Leave of Absence When Child Dies), 2016. Under Bill 175, an employee who has been employed by his or her employer for at least six consecutive months will be entitled to a leave of absence without pay of up to 52 weeks if a child of the employee dies. “Child” is defined in the Bill to include children, step-children and foster children under the age of 18.

Leave for Victims of Domestic and Sexual Violence

On the same day, the Government introduced Bill 177, Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016, which, if passed, will require employers to provide employees with the following:

Domestic Violence or Sexual Violence Leave:

Employers will be required to provide a leave of absence of a “reasonable duration” to employees who have experienced (or who have children who have experienced) domestic or sexual violence. This leave is available to be used by employees for specific purposes, including:

  • seeking medical attention or counselling related to the violence;
  • obtaining support services or legal assistance; or
  • relocating (temporarily or permanently) to reduce the likelihood of future violence.
  • Unlike most ESA leaves which are unpaid, Domestic Violence or Sexual Violence leave will provide employees with up to 10 days of paid leave per calendar year, which would make this the first and only paid leave under the Employment Standards Act.

Reasonable Accommodation

The second requirement under Bill 177 will be for employers to accommodate, up to the point of undue hardship, employees who have (or whose children have) experienced domestic or sexual violence. This may include changing an employee’s place of work and/or their hours of employment to accommodate the employee’s circumstances.

Information and Training:

Finally, this new Bill will require employers to ensure that every manager, supervisor and worker receives information and instruction about domestic and sexual violence in the workplace. This requirement will be enacted under the Occupational Health and Safety Act and will be in addition to the requirements of Bill 132 that we wrote about last month.

As both pieces of proposed legislation are in their early stages, we will continue to provide updates on their progress. If you have any questions regarding these proposed amendments to the ESA and OHSA, do not hesitate to contact anyone in our Labour and Employment Group.

Combatting Sexual Harassment in the Workplace: Formal Measures Required by September 2016

Employers required to have new and updated workplace harassment policies, procedures and training in place by September 8, 2016.

Posted in Investigations, Occupational Health and Safety, Policies, Sexual Harassment, Sexual Violence
Matthew Demeo

As we wrote about late last year, the Government of Ontario has moved forward with its plan to address sexual violence and harassment. Last week, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, received Royal Assent.

While Bill 132 amends various legislation, employers should pay particular attention to the changes to the Occupational Health and Safety Act which aim to bolster employee protection from workplace harassment. These changes impose a September 8, 2016 deadline on employers that requires them to address the following:

  • Review (and if necessary, amend) their workplace harassment policy to ensure it includes workplace sexual harassment;
  • Investigate incidents and complaints of workplace harassment;
  • Inform the parties to a workplace harassment complaint of the results of the investigation and any corrective action that will occur; and
  • Involve the Joint Health and Safety Committee in developing written programs and procedures, regarding workplace harassment, which address:
    • the reporting of incidents;
    • the investigation process;
    • how the investigation information will be kept confidential, except for the purposes of taking corrective action or required by law;
    • training under the programs and procedures; and
    • an annual review of the programs and procedures.

While the deadline for employers to act may be six months away, the post-Labour Day deadline may require employers to act as soon as possible to account for summer vacations. If you have any questions regarding what is required prior to September 8, 2016, do not hesitate to contact anyone in our Labour and Employment Law Group.

Ministry of Labour Compliance Blitz – The Results are In

Posted in Employment Standards, Hours of Work, Investigations, Ministry of Labour, Overtime, Pay, Wage and Hours
Tim Lawson

Last year’s Ontario Ministry of Labour (“MOL”) compliance blitz reveals that employers are having difficulty maintaining basic employment standards. From May 1 to July 31, 2015, the MOL conducted a series of workplace inspections which focused on compliance with core elements of the Ontario Employment Standards Act, 2000 (the “ESA”). The inspections targeted mainly sectors that employ “vulnerable or precarious workers” where the nature of employment is seasonal, part-time or temporary. The results do not trend well:

  • Of the 304 workplace inspections conducted by the Ministry, 232 (or 76%) employers were found not compliant with the ESA.
  • Over $361,000 was recovered for employees through compliance orders issued by Employment Standards Officers. This is in addition to whatever fines/penalties were issued to the employers.
  • Most common monetary violations:
    • Public holiday pay
    • Overtime pay
    • Vacation pay
  • Most common non-monetary violations:
    • Hours of work – excess daily/weekly hours
    • Vacation pay – written agreements
    • Record-keeping

Most of the offending employers probably did not intentionally contravene the law. More likely they were simply caught unaware. They assumed that someone in their organization was keeping track of the latest legislative amendments or that their existing policies and practices met the basic standards. Unfortunately for the majority of the employers audited, they assumed wrongly.

The results of this latest blitz, coupled with new ESA self-audit requirements which we have previously written about here, highlight the importance of taking a proactive approach towards compliance with core standards. Anticipating and preparing for the eventuality that you will be inspected by the MOL or sent a self-audit to complete is a good start to mitigate your organization’s future risk and liability.

At McCarthy Tétrault, we have developed an HR Compliance & Risk Management Diagnostic tool that helps employers achieve compliance with employment regulations.  It can help reduce the risk of individual employee claims and multi-employee class actions, and mitigate reputational damage caused by embarrassing litigation. We see it as an invaluable tool to help employers navigate increasingly complex employment laws.

For more information on compliance issues faced by employers today, please see Tim’s article published in the current issue of The Canadian Corporate Counsel Association Magazine or contact us if you wish to discuss our diagnostic solution in more detail.

A Brave New World? – Probably Not But Employers Sometimes Have To Deal With 26 Months’ Notice and “Dependant Contractors”

Posted in Contractors, Employee Obligations, Employment, Employment Standards, Pay, Termination
Benjamin AberantShana Wolch

The Ontario Court of Appeal has further shattered the “24 month maximum” myth.  In Keenan v. Canac Kitchens Ltd., the Court of Appeal upheld a Trial Judge’s finding that two long service workers were “dependent contractors” and therefore entitled to 26 months’ reasonable notice on termination.

We do not think that this appeal decision is particularly ground-breaking. While unusual, it is not the first time that a Court has awarded more than 24 months’ notice (we are aware of at least one case where a court awarded 30 months).  Also, dependant contractors have long been a recognized category of worker.  However, the decision does provide employers with some valuable reminders: Read more

This article was original posted on the Alberta Employer Advisor blog on February 9, 2016.

It’s in our DNA: Bill S-201 and Genetic Discrimination

Posted in Accommodation, Accommodation, Disability, Discrimination, Federally Regulated Employers, Human Rights, Privacy, US vs. Canadian Employment Law
Kate McNeill-Keller

When dealing with requests for accommodation, employee absenteeism and other medical circumstances, employers are routinely faced with the challenge of balancing employee privacy interests against the operational interests of the business when determining how much medical information and what kind of medical information employers can request.  The analysis typically centres on the issue of what is reasonable in the circumstances, with diagnostic information being considered to be a clear delineation point as to what employers may request and not request.  At the Canadian Senate in January, the question of the protection personal health information took on a new angle, centering around an individual’s right to privacy in respect of their personal genetic information.

In recent years, the concept of “genetic discrimination” has emerged in the US, primarily centering around requests by insurers for genetic information in order to conduct insurance assessments and costings, but also involving the question as to whether employers may use genetic information as a basis on which to determine whether to offer and/or continue employment.  The Canadian Coalition for Genetic Fairness (www.ccgf-cceg.ca) defines genetic discrimination as occurring “when people are treated unfairly because of actual or perceived differences in their genetic information that may cause or increase the risk to develop a disorder or disease”.  In an effort to address these concerns, on May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act which serves to protect Americans against discrimination based on their genetic information when it comes to health insurance and employment.

In Canada, issues of discrimination and the protection of personal health information are currently addressed through provincial and federal human rights and privacy legislation, with additional protections coming through decisions of our various courts and tribunals.  In 2013, the Canadian Senate began the process of codifying the protection of genetic information and the prohibition of genetic discrimination through the introduction of Bill S-218, which stalled following the prorogation of Parliament.  This bill was subsequently reintroduced in 2015 by Senator James Cowan as Bill S-201: An Act to prohibit and prevent genetic discrimination.   Bill S-201 was referred to the Senate’s Human Rights Committee following Second Reading on January 27, 2016, and seeks to prohibit the requirement of genetic testing and the disclosure of genetic testing results as a condition of (a) the provision of goods or services, (b) the entering into or continuance of a contract or agreement, and (c) the offering or continuance of specific terms or conditions in a contract or agreement.   Exceptions to these restrictions would only apply to physicians, pharmacists or other health care practitioners who are providing health services, or to persons conducting medical, pharmaceutical or scientific research.   The proposed penalties for contravention include monetary fines as well as imprisonment.  In addition to the general prohibitions, Bill S-201 seeks to amend the Canada Labour Code, the Canadian Human Rights Act, the Privacy Act and PIPEDA to address and prohibit genetic discrimination, making it particularly relevant for federally regulated employers.

While this may appear to be a significant development, it is important for employers to remember that discrimination in the course of employment on the basis of disability is already prohibited in all Canadian jurisdictions.   Further, it is difficult to imagine many, if any, circumstances where the disclosure of an individual’s genetic information, including their predisposition to certain genetic conditions, would be considered by a Canadian human rights tribunal, whether provincial or federal, to be a bona fide occupational requirement.  As such, there is a strong argument that the current human rights and privacy regimes already offer protection against genetic discrimination in the context of employment.

We will continue to monitor the progress of Bill S-201 and will provide updates as developments arise.  In the interim, if you have any questions, please contact our Labour & Employment team.

Mental Health Matters

Posted in Accommodation, Mental Health, Occupational Health and Safety, Policies

Today is Bell Let’s Talk Day which serves as a great reminder about the importance of promoting discussion and dialogue around mental health. For employers, there are various challenges associated with addressing mental health which includes the identification, accommodation and organizational approach to the issue. To help combat the stigma and negative perceptions around mental health, today is a good opportunity to focus attention on the legal framework, accommodation process and best practices surrounding mental health in the workplace. Continue Reading