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In the recent case of Bertsch v. Datastealth Inc., 2024 ONSC 5593 (Bertsch), an Ontario court upheld a termination provision that did not specify every detail. While recent decisions suggest that such provisions may have to be flawless to be enforceable, Bertsch is a welcome decision showing that employers do not necessarily have to meet that high bar to protect themselves.

Key Takeaways

Bertsch reminds employers of the importance of including clear and compliant termination provisions in employment agreements. Ontario employers should review their agreements to ensure they meet the requirements of the Employment Standards Act, 2000 to avoid potential legal challenges. Employers should continue to confirm their termination provisions are:

  1. Clear and unambiguous to avoid disputes and potential invalidation by the courts.
  2. Compliant with the ESA and its regulations.
  3. Inclusive of language stating that compliance with the ESA and whatever other entitlements are listed in the employment agreement satisfy any common law notice of termination or pay in lieu thereof.

Bertsch demonstrates that while courts will continue to closely scrutinize termination provisions in employment agreements, employers must only ensure that the provisions are legal and unambiguous. This provides some relief for Ontario’s employers by indicating that they do not necessarily have to rely on “perfect” termination clauses that reference all scenarios and laws in their employment agreements to enforce them.

Even with this positive decision for employers, we continue to encourage all Canadian employers to assess the enforceability of termination provisions in existing employment agreements.

Continue Reading Don’t Let Perfect Be the Enemy of Excellent: Ontario Court Validates Termination Clause that is Unambiguous and Legal
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Special thanks to our articling student Andie Hoang for contributing to this update.

In 2022, the Ontario government sought to establish a new legal framework for “digital platform work” through the introduction of the Digital Platform Workers’ Rights Act, 2022. It is now set to come into force on July 1, 2025. The Act, stemming from the Working for Workers Act, 2022, introduces new rights and protections for workers within the gig-economy. Specifically, the Act will apply to workers who perform “digital platform work” (such as ride share, delivery, or courier services) and “operators” who facilitate the performance of digital platform work through a digital platform.

Summary of Significant Changes

In conjunction with the Act, the Government of Ontario has recently published regulations that further clarifies the new rights and obligations under the Act. Key worker rights and new obligations include:

  • Right to a Minimum Wage: Digital platform operations will be required to pay a worker at least the minimum wage rate payable under the Employment Standard Act, 2000 (ESA), exclusive of tips and other gratuities, for each “work assignment” performed. Subject to specific exceptions, a “work assignment” will typically begin when a worker accepts a work assignment through a digital platform and ends when the worker performs the assignment.
Continue Reading A New Gig for Digital Platform Work: Ontario’s Legal Framework for Digital Platform Workers Comes into Force July 1, 2025
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On October 28, 2024, Ontario’s Working for Workers Five Act, 2024 (Bill 190) received royal assent. Here’s what employers need to know:

Key Changes

  1. Prohibition on sick notes for ESA sick leave. Employers are prohibited from requiring an employee to provide a certificate from a qualified health care practitioner (i.e. a sick note) as evidence of entitlement to ESA “sick leave.” Under section 50 of the ESA, an employee who has been employed for at least two consecutive weeks is entitled to three days of unpaid sick leave per calendar year in instances of personal illness, injury or medical emergency. Employers will not be permitted to request a certificate from a qualified health practitioner as evidence of entitlement to these three days of sick leave.
  1. Employment Standards Act amendments:
  • Job postings: employers must now disclose whether a vacancy truly exists in publicly advertised job postings and respond to interviewees within a specified period.
  • Increased fines: the maximum fine for individuals convicted of an offence for contravening the ESA or for failing to comply with an order, direction or other requirement under the ESA increased from $50,000 to $100,000.
  1. Occupational Health and Safety Act updates: The Act now includes provisions for maintaining washroom facilities, updating definitions of workplace harassment to include virtual activities, and applying the Act to telework performed in private residences. In addition, posting requirements under the OHSA may now be satisfied by providing workers with access to electronic copies, so long as workers are directed where to access that information and the information is in a format that can readily be accessed by workers in the workplace.

Takeaways for Employers

  • Train HR and managers on the amendments concerning statutory sick leave. Review existing policies and practices regarding statutory sick leave to ensure managers do not require employees to provide a certificate from a qualified health care practitioner to prove their entitlement to sick leave under the ESA. While employers retain the right to ask an employee to provide information “reasonable in the circumstances,” they may no longer require a ‘sick note’ from a qualified health practitioner.
  • Review job posting practices. Ensure that all publicly advertised job postings accurately reflect existing vacancies and establish a process for timely responses to interviewees.
  • Update workplace policies. Revise policies to include provisions for virtual harassment and telework. Ensure that all required information is accessible electronically. Help managers understand that OHSA legislation will apply to remote work performed at a private residence.

By staying informed and proactive, employers can ensure they are compliant with the new regulations and continue to support their workforce effectively. Please contact a member of our team with any questions.

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Changes to the capital gains inclusion rate and the employee stock option deduction rate (as proposed in Budget 2024) will apply to stock options exercised and shares sold on or after June 25, 2024. 

The new measure reduces the stock option deduction and capital gains tax exemption from 1/2 of the taxable amount to 1/3 of the taxable amount, if an individual’s annual combined limit of CAD 250,000 has been exceeded. The individual taxpayer can choose how to allocate the preferential tax treatment between the stock option income and capital gains to the extent the combined limit has been exceeded. 

There is still uncertainty as to how employers should manage tax withholding on stock option income (i.e., apply a 1/2 or 1/3 exemption), given they would not be in a position to know whether the combined limit has been reached by the employee and how the employee has chosen to allocate the exemptions. Further technical changes in the legislation are expected to be introduced at the end of July 2024 that may provide additional clarification on this point. For now, it may be reasonable for employers to assume that only 1/3 of the stock option income is exempt and withhold taxes accordingly and leave it up to the employees to claim the 1/2 deduction (if available) when they file their individual tax returns. 

Continue Reading Changes to Taxation of Stock Options and Capital Gains – Effective Immediately
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We are thrilled to announced that the latest edition of The Global Employer: Focus on Global Immigration & Mobility is now available! This handy, go-to desk reference guide includes:

  • An overview of key global immigration and mobility issues to consider related to immigration, employment, compensation and employee benefits, income taxes and social insurance, and global equity compensation.
  • An executive summary for 27 jurisdictional chapters identifying key government agencies, highlighting current compliance and enforcement trends, and describing short and long term visas appropriate for business travel, training and employment assignments. The handbook includes other can’t miss insights for global human resources and legal teams.

Click here to access now.

Baker McKenzie offers comprehensive legal advice related to global immigration – delivered locally around the world. We help employers plan and implement global transfers and provide on-site legal support to companies and employees in most major business communities around the globe. To know more, visit our Global Immigration & Mobility page or contact us here.

*Jurisdiction chapters available for Argentina, Australia, Austria, Belgium, Brazil, Canada, China, Colombia, Czech Republic, Germany, Hong Kong SAR, Hungary, Italy, Japan, Luxembourg, Mexico, Myanmar, The Netherlands, Philippines, Poland, Singapore, Spain, Switzerland, Taiwan, Ukraine, United Kingdom, United States, and Vietnam.

Global Employment & Compensation Resource Suite

Looking for additional resources to ensure your HR and legal counsel remain up-to-date on the latest employment law regulations globally?

Access our Global Employment & Compensation Practice Group’s full digital library of legal content on-demand.

The Global Employment & Compensation Resource Suite is a self-service database that provides our clients with 24/7 access to our global employment resources. Once registered, users can browse our range of Global Employer Handbooks, Blogs and Media, and Legal Updates.

Click here to request access.

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We’re bringing the world to you. Join Baker McKenzie for our annual Global Employment Law webinar series.

In the face of intensifying geopolitical risk and continuing economic uncertainty, the challenges for global employers to plan carefully and operate strategically to maintain a thriving workforce is greater than ever. We’ll help employers navigate those challenges in our four-part webinar series featuring Baker McKenzie Global Employment Law colleagues from the Americas, Asia Pacific, Europe, and the Middle East and Africa who will share legal updates and trends impacting US-based multinationals, and provide tips and best practices for your success. 

In each 60-minute discussion, we will explore:

  • The Local Political & Economic Climate
  • How Global Hot Topics Play Out Locally, highlighting developments in:
    • Noncompete Agreements
    • The Shifting ID&E Landscape
    • Labour Relations
    • AI in the Workplace
  • New Laws to Know
  • Action Items for Employers to Take Now (“To-Dos”)

Join us!

Registration Details

THE AMERICAS
Argentina, Brazil, Canada, Colombia and Mexico
Thursday, June 6, 2024
10 am PT/ 12 pm CT/ 1 pm ET
Click here to register for the Americas webinar.

ASIA PACIFIC
Australia, China, Japan, the Philippines, Singapore and Vietnam
Wednesday, June 12, 2024
3 pm PT/ 5 pm CT/ 6 pm ET
Click here to register for the APAC webinar.

EUROPE
France, Germany, the Netherlands, Spain and the United Kingdom
Thursday, June 20, 2024
9 am PT/ 11 am CT/ 12 pm ET
Click here to register for the Europe webinar.

THE MIDDLE EAST AND AFRICA
Egypt, Saudi Arabia, South Africa, Türkiye and the United Arab Emirates
Wednesday, June 26, 2024
9 am PT/ 11 am CT/ 12 pm ET
Click here to register for the MEA webinar.

To view these programs in a different time zone, click here. 
Please “register” for a copy of the recording and materials if you are unable to attend live.

CLE Accreditation

Each program is approved for 1.0 general California CLE credit, 1.0 general Illinois CLE credit, and 1.0 professional practice New York CLE credit. Participants requesting credit for other states will receive Uniform CLE Certificates.

Each 1-hour program can be applied towards the 9 Substantive Hours of Continuing Professional Development (CPD) required by the Law Society of Ontario.

Baker & McKenzie LLP is a California and Illinois CLE approved provider. Baker & McKenzie LLP has been certified by the New York State CLE Board as an accredited provider in the state of New York. This program is appropriate for both experienced and newly admitted New York attorneys. 

**While CLE credit may be pre-approved in certain jurisdictions, final CLE accreditation approval is anticipated, but not guaranteed.

To view the complete roster of presenters for each regional program, click here.  

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Special thanks to our articling student Mario Lofranco for contributing to this update.

In a previous blog post, we discussed the proposed changes that Bill 149 would bring to several employment statutes, building on the Working for Workers Acts, 2021, 2022, and 2023.

Bill 149 received royal assent on March 21, 2024, passing key changes to the Ontario Employment Standards Act, 2000, the Digital Platform Workers’ Rights Act, 2022, the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, and the Workplace Safety and Insurance Act, 1997.

Key Changes

  • Job Postings: Ontario employers will be required to include information about the expected compensation or the range of expected compensation for a position in their publicly advertised job postings. Employers will also be required to disclose in job postings whether they used AI in the hiring process (i.e., if AI was used to screen, assess or select applicants for the position). We expect these requirements to be further clarified in future regulations, including as it relates to the definition of “artificial intelligence” and potential exemptions to these disclosure requirements. These changes will come into force on a date to be named by future proclamation.
  • Canadian Experience Class: Employers will be prohibited from including in job postings or any associated application form any requirements related to Canadian experience. As with above-noted changes, exemptions may be outlined in regulations and the requirement will take effect on a date to be specified by future proclamation.
  • Tips and Tip Policies: As of June 21, 2024, employers with policies on tip-sharing will be required to post them in a conspicuous location at the workplace and to comply with prescribed methods regarding the payment of tips to employees.
  • Deductions: TheESA now expressly prohibits employers from making deductions from an employee’s wages where a customer of a restaurant, gas station or other establishment leaves the establishment without paying for the goods or services. This provision entered into force on March 21, 2024.
  • DPWRA Amendments: The Ontario government will be able to prescribe rules for determining compliance with minimum wage requirements and limitations on recurring pay periods and pay days for digital platform workers covered by the DPWRA. This provision will enter into force at a later date, once the other minimum wage provisions of the DPWRA come into force.  

Takeaways for Employers

Ontario employers should review their current practices to ensure compliance with these amendments. In particular, employers should prepare to revise their publicly-available job postings in light of Bill 149’s upcoming disclosure requirements as it relates to pay information and the use of AI in their hiring process. We will continue to monitor legislative developments related to Bill 149, including the publication of relevant regulations. Please contact a member of our team for more information on these issues.

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Special thanks to co-presenter Sarah Mavula.

Quebec’s Bill 96 significantly expanded existing French language requirements under Quebec’s Charter of the French language, including new translation requirements for a wide range of employment documents. Similarly, the treatment of commercial standard form contracts (or contracts of adhesion) must now be translated into French first, even if the parties agree to proceed in a language other than French, such as English. 

This video is tailored to employment counsel, HR, and advertising and marketing professionals, as well as business professionals seeking to expand their business and workforce in Quebec.

In Part 2 of our series on Bill 96, our Canadian Employment & Compensation and International Commercial lawyers outline obligations for organizations doing business in Quebec, and employers operating in Quebec (including federally-regulated employers), along with enforcement measures and trends since the implementation. 

Click here to watch the Part 2 video.

In case you missed it, watch Part 1 of our two-part In Focus video series on Quebec’s Bill 96: Trademarks Plus Advertising & Marketing featuring presenters Jeremy Hann, Stephanie Vaccari and Sarah Mavula where we discuss the specifics of the new requirements outlined by Quebec’s Bill 96, including how copy must appear on products and product packaging, and what the rules mean for businesses’ trademark portfolios. Watch this episode and learn what you need to know before the June 1, 2025 deadline.

Click here to watch the Part 1 video.

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In this 75-minute “quick hits” style session, our team provided practical advice to Canadian in-house counsel and human resources leaders and addressed what to keep top-of-mind for 2024.

Among other topics, we discussed:

  • Key legislative developments including:
    • The progress and implications of Ontario’s latest “Working for Workers” legislation
    • Implications of Pay Transparency Legislation in British Columbia and the rest of Canada
    • An update on implementing the changes imposed by French Language Legislation in Quebec and the Federal Jurisdiction
  • Significant case law developments impacting:
    • Alberta’s new “tort” of harassment
    • Discrimination based on family status in British Columbia
    • Termination provisions in Ontario
    • Changes to the substratum rule 
  • Immigration developments and lessons learned in 2023
  • Best practices for managing generative AI in the workplace 
  • Navigating key Competition Act changes
PLEASE CLICK HERE FOR A RECORDING OF THE WEBINAR.

Apply our 2024 Canadian Employer Checklist to set priorities for the year ahead, and contact our team with any questions.

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Special thanks to our articling student Ravneet Minhas for contributing to this update.

Federal employers should be aware of recent amendments to the Canada Labour Code, which increased the minimum termination notice period for federally regulated private sector employees.[1] The changes came into force February 1, 2024 and provide employees who have completed at least three years of continuous service with a longer notice period if terminated without cause.

Previously, employers had to provide a minimum of two weeks’ notice of termination or pay in lieu of notice to an employee who had completed at least three months of continuous employment with the employer.

Continue Reading Reminder for Federal Employers: Changes to Termination Notice Period in Effect NOW