Latest updates

Bill 148: new risks for misclassifying independent contractors as employees
Fasken
  • Employment & Benefits
  • Canada
  • June 20 2018

The Ontario government is increasing the risks and penalties for employers that misclassify workers as independent contractors as part of the Fair Workplaces, Better Jobs Act. The burden is now on employers to prove that workers are not employees under the Employment Standards Act. This change of presumption will make it even more difficult for employers to defend claims filed by individuals challenging their status as an independent contractor in favour of being classified as an employee.

What is the origin of a name – not as innocent a question as it seems
Fasken
  • Employment & Benefits
  • Canada
  • June 13 2018

The Human Rights Tribunal recently examined discrimination in hiring, specifically in regard to ethnic or national origin. It opined that the purpose of Section 18.1 of the Charter of Human Rights and Liberties is to eliminate discrimination in hiring at its roots by prohibiting any question relating to a personal characteristic. Accordingly, a mere question relating to one of the grounds listed in Section 10 of the charter will constitute an automatic violation of Section 18.1.

Employer-mandated physician visit is not a privacy violation
Fasken
  • Employment & Benefits
  • Canada
  • June 06 2018

Employers are entitled to require employees to visit in-house occupational health department physicians to obtain reasonably necessary medical information if that right is provided for in their collective agreement. This was recently confirmed when an arbitrator found that an employer had not violated employee privacy rights when it required employees to visit in-house occupational health department physicians to confirm eligibility for wage loss protection benefits.

Bill 6 – amendments to British Columbia Employment Standards Act
Fasken
  • Employment & Benefits
  • Canada
  • May 30 2018

British Columbia's minority New Democratic Party government recently introduced Bill 6 into the British Columbia legislature. The bill contains many amendments dealing with the British Columbia Employment Standards Act. Among other things, the proposed amendments align provincial leave benefits with the changes made to federal employment insurance benefits. Bill 6 would also provide new and extended maternity, parental and compassionate care leave.

Bill 148: Ontario makes important changes to health and safety law
Fasken
  • Employment & Benefits
  • Canada
  • May 23 2018

While the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') made many changes to the Employment Standards Act 2000, it made only one change to the Occupational Health and Safety Act. However, the Stronger, Fairer Ontario Act (Budget Measures) 2017 also made changes to the Occupational Health and Safety Act – most significantly, an increase in the maximum fines following a conviction and a change to the limitation period for charges to be laid.

Pay Transparency Act enacted in Ontario, national trend emerging
Fasken
  • Employment & Benefits
  • Canada
  • May 16 2018

The Ontario Pay Transparency Act has been enacted as a central piece of Ontario's strategy for women's economic empowerment. The act will require employers with more than 100 employees to collect information and prepare pay transparency reports, which may be published online by the Ministry of Labour. The Ontario legislation is part of an emerging Canada-wide trend reflecting increasing efforts to improve pay equity and, more generally, equality in the workplace.

Right to disconnect: will employees be able to pull the plug?
Fasken
  • Employment & Benefits
  • Canada
  • May 09 2018

Bill 1097: the Right-to-Disconnect Act was recently introduced and aims to ensure that employee rest periods are respected by requiring employers to adopt an after-hours disconnection policy. However, implementing a disconnection policy could encourage the culture of presenteeism (or face time) at the expense of efficiency and new ways of working, as well as put more pressure on employees who are subject to stricter work schedules.

Bill 148: vacation, overtime and record keeping
Fasken
  • Employment & Benefits
  • Canada
  • May 02 2018

Bill 148 introduced a host of new requirements for Ontario employers. Three changes which should (but may not) be on the radar of Ontario payroll and HR information system administrators are new vacation time and vacation pay requirements, changes to the calculation of overtime pay where employees have multiple rates of pay and new record-keeping requirements.

Court rules sharing confidential information is just cause for termination
Fasken
  • Employment & Benefits
  • Canada
  • April 25 2018

When privacy and confidentiality are important in a job, a manager's breach of confidence may provide just cause for termination, particularly when the employer's policy on confidentiality obligations is known to the employee. The British Columbia Supreme Court recently affirmed these principles and highlighted the value of a properly executed release if the employee later challenges an agreement made at the time of termination.

How to enforce termination provisions: latest from Ontario Court of Appeal
Fasken
  • Employment & Benefits
  • Canada
  • April 18 2018

For years, lawyers have debated whether a termination clause must specifically state that the employee will not be entitled to common law reasonable notice in order to limit his or her entitlements upon termination. According to a recent Ontario Court of Appeal decision, the answer is no. The decision has also confirmed that a termination clause need not address all of the employee's statutory entitlements in order for it to be valid.

Bill 148: scheduling and the three-hour rule
Fasken
  • Employment & Benefits
  • Canada
  • April 04 2018

The Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') is now in force and has made significant changes to the Employment Standards Act 2000. Included in the changes to the act are new provisions on scheduling, including on-call work, changes to scheduled shifts and shift cancellation. Although these changes do not come into effect until January 1 2019, employers should be aware of them in order to ensure compliance in time.

Handle with care: importance of measured response to poisoned workplace complaint
Fasken
  • Employment & Benefits
  • Canada
  • March 28 2018

Whether a poisoned workplace justifies a claim for constructive dismissal depends on the facts. The key question is whether the employer fundamentally breached its obligation to provide a safe and harassment-free workplace. The Alberta Court of Queen's Bench recently addressed the issue of how an employer can properly address a poisoned workplace complaint to ensure that it adequately cares for its employees and minimises its liability exposure.

Bill 148: changes to Labour Relations Act
Fasken
  • Employment & Benefits
  • Canada
  • March 21 2018

The impact of the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') has been overshadowed, to some extent, by the controversy surrounding the sweeping changes to the Employment Standards Act 2000, including the changes to the minimum wage. However, the bill has also made significant changes to the Labour Relations Act 1995.

Bill 148: significant changes affecting agency employees
Fasken
  • Employment & Benefits
  • Canada
  • March 14 2018

One of the government's primary goals when enacting the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') was to provide additional protections for vulnerable employees, including individuals employed by temporary help agencies. As such, the changes will have a significant effect on both temporary help agencies and the companies that use their services.

Court gives asset purchasers leeway with employment offers
Fasken
  • Employment & Benefits
  • Canada
  • March 07 2018

The Ontario Court of Appeal recently overturned a Superior Court decision and ruled that a purchaser's employment offer, in and of itself, constitutes sufficient consideration to establish a valid employment contract. Further, asset purchasers are neither bound by the terms of the seller's employment agreements nor required to offer the seller's employees contracts on terms identical to their original agreements.

Reduce risk of accident by investigating near misses
Fasken
  • Employment & Benefits
  • Canada
  • February 28 2018

Most employers have a procedure for investigating accidents in the workplace. However, less likely to be investigated are near misses that may have gone unreported because of the workplace culture or because they were not viewed as important. While it may seem that investigating a near miss is not worth the time and energy, in the long run, it is likely to uncover unknown hazards or conditions which may result in a serious injury or fatality.

Bill 148: equal pay for equal work
Fasken
  • Employment & Benefits
  • Canada
  • February 21 2018

Included among the many changes to the Employment Standards Act 2000 brought about by the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') is the prohibition on paying certain employees less than others based on their employment status. This means that employers can no longer pay part-time employees less than full-time employees if they perform substantially the same kind of work in the same establishment.

Bill 148: changes to existing leaves of absence and new types of leave for Ontario employees
Fasken
  • Employment & Benefits
  • Canada
  • February 14 2018

Included among the many changes to the Employment Standards Act, 2000 brought about by the Fair Workplaces, Better Jobs Act, 2017 (referred to as 'Bill 148') are changes to existing leaves of absence and the introduction of new leaves of absence for Ontario employees. Employers should review and update their existing policies to ensure compliance with Bill 148, keeping in mind the changes and additions that are now in effect.

Alberta workers' compensation: a refocus
Fasken
  • Employment & Benefits
  • Canada
  • January 17 2018

In 2016 the Alberta government commissioned an evaluation of the entire workers' compensation system. In July 2017 the Alberta Workers' Compensation Board review panel issued a report which found that employers and workers overwhelmingly wanted the system to continue. However, significant problems exist and, based on these findings, the panel issued a list of recommendations. While the extent to which the government adopts these recommendations remains to be seen, further debate is likely.

Dismissals for incompetence: are we moving backward or forward?
Fasken
  • Employment & Benefits
  • Canada
  • January 10 2018

Employers in Quebec that wish to dismiss employees for incompetence may now need to accomplish an additional step before doing so, following the Quebec Superior Court's recent confirmation of an arbitration decision in which an additional criterion was added to those previously established by the Court of Appeal. According to the superior court, employers must also verify whether another more suitable role is available for an employee before proceeding with termination.