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Every business has sensitive components integral to its success, whether trade secrets, customer contacts, or other confidential information that would be appealing to competitors.

In Canada, attempting to stop an employee from sharing confidential information, competing, or soliciting customers, suppliers or employees can be tricky. In this In Focus video, our Labour and Employment lawyers discuss the current state of the restrictive covenant landscape and what steps employers can take to protect their businesses.

Click here to watch the video.

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Special thanks to presenters Benjamin Ho  (San Francisco), Matias Herrero (Buenos Aires), Liliana Hernandez-Salgado (Mexico City), Maria Cecilia Reyes Jaimes (Bogota) and Leticia Ribeiro (Trench Rossi Watanabe, Sao Paulo*)

*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law

Our four-part Navigating the World webinar series features US moderators welcoming Baker McKenzie colleagues from around the globe as they share the latest labor and employment law updates and trends. In this session, US-based multinational employers with business operations in the Americas hear directly from Andrew Shaw and local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

Please click here to view a recording of the webinar highlighting the Americas. 

We invite you to register to reserve your spot at our upcoming sessions:

MIDDLE EAST AND AFRICA: Wednesday, June 15 at 9 am PT / 11 am CT/ 12 pm ET

ASIA PACIFIC: Wednesday, June 22 at 3 pm PT / 5 pm CT/ 6 pm ET

Click here to view the program details, to register and to watch recordings of any sessions you may have missed.

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In a recent episode of the Toronto Today with Greg Brady podcast, George Avraam (starting at 16:17 of the podcast) discussed Baker McKenzie’s representation of McMaster University in defending its mandatory COVID-19 vaccination policy on judicial review (see also our prior blogpost here), and why some university students will have to show proof of a COVID-19 vaccination before attending class this fall.

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On June 1, 2022, the Québec National Assembly passed Bill 96, An Act respecting French, the official and common language of Québec, introducing significant changes to the Charter of the French Language and other laws. The Bill aims to reinforce the use of French in business, services, communications, education, and the workplace by strengthening existing French language requirements and imposing new ones.

Below we have summarized the significant employment-related changes and offer some key takeaways.

Employment-related Changes

The key employment law changes introduced by Bill 96 are as follows:

  • Mandatory Employment Documentation and Written Communications in French: Employers must provide offers of employment, transfer or promotion; documents relating to conditions of employment, such as manuals and policies; job application forms; group benefits information; and training documents in French, with no exception. Employers are also required to draw up written communications to their employees in French, unless an employee requests that such communications be in a language other than French.
  • Individual Employment Contracts in French: Bill 96 divides individual employment contracts into two categories: those that are a contract of adhesion (i.e. a contract where its terms are imposed and are non-negotiable) and those that are not (i.e. the terms are individually negotiated by the parties).
    • All employment contracts that are contracts of adhesion must be provided in French, so that the parties can first examine the contract and only after examining it, agree to be bound by the non-French version if it is their wish to do so.
    • Employment contracts that are not contracts of adhesion can be drawn up exclusively in a language other than French if it is the express wish of both parties. Individual employment contracts entered into before June 1, 2022 that are drafted in a language other than French are not required to be translated into French, unless an employee requests the translation within one year of June 1. If requested, employers must translate the documents in a timely manner.
  • Recruitment: Employers must make job postings available in French in a comparable manner as the publication of the non-French version. An employer advertising a job offer in a language other than French must ensure that the non-French job offer is advertised simultaneously with the French offer. Both job offers must reach a target public of a proportionally comparable size. If a position requires the knowledge of a language other than French, the justification for the requirement must be indicated in the job posting. Additionally, employment applications must be drawn up in French. If applications are available in another language, employers must ensure that the French version is available on terms that are at least as favourable as the non-French version.
  • Knowledge of a Language other than French: Employers are required to take all reasonable means to avoid requiring a person to have knowledge of a language other than French to obtain or keep a position. Before making knowledge of English a condition of employment, businesses will have to conduct an assessment as to why that condition is required and document it. However, the Bill specifies that this requirement should not be interpreted as imposing an unreasonable reorganization of an employer’s business.
  • Protection Measures: Employers are prohibited from taking reprisals against an employee who seeks to enforce his or her rights under the Charter or to deter an employee from exercising such rights. The Bill also creates a new dispute resolution procedure: any person who believes they have been the victim of a prohibited practice can now file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”) within 45 days of the alleged conduct.
  • Discrimination and Harassment: The Bill provides for a right to work in an environment free of discrimination or harassment with respect to the use of French. Employers will be required to take reasonable steps to prevent such conduct and, if such conduct is brought to their attention, to make it stop.
  • Francization: The existing French language requirements applicable to businesses with 50 or more employees are extended to businesses with at least 25 employees. These businesses will now be required to register and obtain a Francization certificate from the Office québécois de la langue française (“OQLF”) attesting that the use of French is “generalized” at all levels of the business.
  • Compliance and Enforcement: In addition to creating a new private right of action for Québec residents, the Bill increases penal fines for non-compliance with the Charter to a maximum of $30,000 for businesses for a first offence. In addition, the OQLF, charged with enforcing the Charter, is also granted enhanced enforcement and investigative powers, such as entering a business’ premises to ensure language requirements are being met.
  • Court Proceedings: Any pleadings drawn up in English by an individual or corporation must be accompanied by a certified French translation, at the expense of that party.

Please note that Bill 96 applies to any employer carrying out its activities in Québec, including federally-regulated employers.

Entry into Force

Most of the amendments described in this post entered into force on June 1, 2022. The extended Francization rules will become effective three years after the Bill’s assent, and the provision regarding the translation of pleadings will become effective three months after the Bill’s assent. Parties will also have one year to translate any application forms, documents relating to conditions of employment, training, and other documents into French.

Key Takeaways

Businesses with Québec employees will need to review their current practices and may be required to undertake major changes to comply with Bill 96’s new requirements, including:

  • reconsidering job posting/description practices;
  • translating employment applications;
  • reconsidering their approach to translating all employment-related onboarding documents (offers/contracts, bonus plans, commission plans, equity plans, etc.);
  • developing an approach to translating all benefits information, employment policies and other employee facing documentation; and
  • for businesses with at least 25 employees, assessing whether the use of French is generalized in the workplace and making additional changes to comply with the Francization rules.

Many thanks to Juliette Mestre for her assistance with this blog.

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We are pleased to share a recent The Hill Times article, “Cyberbullying more common for adults than children during pandemic, say experts,” with quotes from Andrew Shaw. This article discusses adults who work in fields related to COVID-19 have been at greater risk of being targeted with online forms of harassment during the pandemic, including scientists, health-care practitioners, and educators.

Click here to view the article.

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We are pleased to share a recent Benefits Canada article, “Employers seeking to withhold termination entitlements must prove wilful misconduct pre-planned: Ontario court,” with quotes from George Avraam. A recent Ontario Court of Appeal decision raises the bar for employers seeking to withhold minimum entitlements under the Employment Standards Act from employees dismissed for cause.

Click here to view the article.

This article was originally published in Benefits Canada.

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In December 2021, the Ontario government passed Bill 27 – Working for Workers Act, 2021 requiring employers with 25 or more employees to create a “Disconnecting from Work Policy” by June 2, 2022. The Ontario government is following the lead of France, Spain and Portugal — all of which have adopted similar legislation in recent years.

In this In Focus video, our Labour and Employment lawyers share key considerations and important timelines for employers to know as they develop Disconnect policies for their workplaces.

Click here to watch the video.

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For more detail, read the Law Times article McMaster University wins judicial review over removal of students for refusing COVID-19 vaccine.

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In Render v. ThyssenKrupp Elevator (Canada) Limited Group, the Ontario Court of Appeal redefined wilful misconduct under the Employment Standards Act and confirmed the modern day approach to assessing sexual harassment in the workplace.

The Decision

Mark Render was terminated for cause after slapping a female co-worker on her behind. The trial judge found that the incident caused a breakdown in the employment relationship that justified his dismissal for cause and the denial of all common law and statutory entitlements. Render appealed.

The Ontario Court of Appeal confirmed that the employer had just cause to terminate Render’s employment. But it also found that his conduct was not wilful misconduct. Thus, the Court found that Render was entitled to his minimum entitlements under the Employment Standards Act, but not common law notice. Since the Court had no evidence that ThyssenKrupp’s payroll exceeded $2.5M, Render was only entitled to termination pay and not severance pay.

In reviewing the statutory term of wilful misconduct, the Court reiterated the well-known principle that proving wilful misconduct is more onerous than just cause at common law. Although this was always a well-known concept, the Court of Appeal introduced what looks like a new element that employers need to establish—the misconduct must be preplanned and not just intentional. Here, the Court found that Render’s conduct was performed in the heat of the moment, in reaction to an insult. Thus, while ThyssenKrupp had just cause to terminate Render’s employment, disentitling him to any common law notice, it did not establish that there was wilful misconduct.

Key Points

Employers now have the added burden of proving that an employee’s misconduct was both intentional and preplanned to meet the threshold of wilful misconduct.

The Court’s decision also confirms the modern view that an employer should not look at sexual harassment misconduct on a spectrum to determine whether it has cause to terminate an offender’s employment. The trial court determined that whether an act is sexual harassment, sexual assault, or common assault, the purpose is the same in that it is to assert dominance over an individual and demean or embarrass them in front of others. The Court of Appeal upheld this aspect of the trial court’s decision, showing the lack of tolerance courts will have for misconduct of this nature.

If you have any questions, please contact a member of our team.

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On April 11, 2022 Bill 88, Working for Workers Act, 2022 received royal assent, introducing significant changes to a number of employment-related statutes, and introducing the Digital Platform Workers Rights Act, 2022.

The most important changes introduced by Bill 88 include:

  • New employment standards exemptions: Certain business consultants and information technology consultants are now exempt from the Employment Standards Act (ESA). This includes hours of work provisions, overtime provisions, and termination pay and severance obligations. This amendment comes into force on January 1, 2023.
  • Requirement to develop an electronic monitoring policy: Employers with 25 or more employees as of January 1 of any year are required to develop and implement a written electronic monitoring policy by October 11, 2022, and make copies of the policy available to all of their employees. The policy must include whether the employer electronically monitors its employees and, if so, (i) a description of how and in what circumstances the employer may electronically monitor employees, and (ii) the purpose for which information obtained through electronic monitoring may be used by the employer. The policy must also contain the date it was prepared and any changes made to it, and any other information as may be prescribed by regulation.
  • New Digital Platform Workers Rights Act, 2022: Bill 88 enacts the Digital Platform Workers Rights Act, 2022 which establishes rights for workers who perform digital platform work, defined as the provision for payment ride share, delivery, courier or other prescribed service through a digital platform. The new Act provides for the following worker rights and obligations, among others:
    • Right to information: Digital platform operators must provide workers with information on how pay is calculated and whether tips and gratuities are collected, pay periods, performance ratings, work assignments, etc.
    • Right to recurrent pay period and pay day, minimum wage for each work assignment performed by a worker, and amounts earned and tips and other gratuities.
    • Right to notice of removal: Workers must be advised of the reasons for being removed from a platform, and be given two weeks’ written notice if access is removed for more than 24 hours.
    • Right to be free from reprisal and to resolve work-related disputes with platform operators in Ontario.
    • The Act also sets out record-keeping obligations for platform operators, director liability provisions, and detailed complaints and enforcement provisions.
  • Health and safety: the Occupational Health and Safety Act (OHSA) is amended to (i) require employers to provide naloxone kits when an employer becomes aware of a risk for a worker of having an opioid overdose at the workplace; (ii) increase maximum fines under the OHSA to $1,500,000 for directors and officers, and $500,000 for other individuals; and (iii) increase the limitation period for prosecutions to two years. Amendments to the OHSA enforcement provisions come into force on July 1, 2022, while the new requirements related to the provision of naloxone kits will come into force at a future day to be named by proclamation.
  • Expanded reservist leave: The ESA is amended to provide employees with additional time off to participate in Canadian Armed Forces military skills training.
  • New timelines for applications to certain regulated professions: Amendments to the Fair Access to Regulation Professions and Compulsory Trades Act, 2006 establish new timelines to reduce delays for responding to applications for registration by a regulated profession in Ontario from applicants already registered with an equivalent out-of-province body.

Key Takeaways

Bill 88 has sweeping implications for employers. Employers with more than 25 employees should review their electronic monitoring practices and start developing a written policy in accordance with the new ESA requirements. Business qualifying as digital platform operators under the Digital Platform Workers Rights Act should review their payment, record-keeping, and other practices to ensure compliance with the obligations set under the new Act, which will come into force on a date yet to be determined. If you have any questions or need assistance with any of the above, please contact someone from our team.

Many thanks to Juliette Mestre for her assistance with this article.