To ring in the New Year, we highlight the ten most significant developments in Canadian labour and employment law in 2016:

  1. For Federal Employers, a Dismissal “Without Cause” is an “Unjust Dismissal”.  In Wilson v. Atomic Energy, the Supreme Court of Canada confirmed that, after 12 consecutive months of service, most federally-regulated, non-union employees can only be dismissed for “just cause”. Consequently, it is now clear that employees who are regulated under Part III of the Canada Labour Code cannot, following their first year of employment, simply be provided with termination notice or pay in lieu, absent just cause.  Federal employers may nevertheless dismiss an employee who has been laid off due to a “lack of work” or “discontinuance of a function”.
  2. HRTO Revisits the Test for Family Status Discrimination.  In Misetich v. Value Village Stores Inc., the Human Rights Tribunal of Ontario was critical of the current test for family status discrimination—a test that was established and upheld by the Federal Court of Appeal in Johnstone v Canada.  In Misetich, the HRTO set out a new test that would not require the applicant to establish that their family obligation engages a “legal” responsibility.  The proposed new test would also relax the current standard of requiring the applicant to demonstrate they made a reasonable effort to “self-accommodate”.
  3. Employer Held Liable for Failing to Protect Employees Against Social Media Harassment.  In Toronto Transit Commission and ATU, Local 113, a labour arbitrator held an employer was liable for failing to protect its workers against harassment in customer posts associated with the employer’s Twitter account. Employers with a social media presence now face a greater risk of liability for failing to prevent workers from being exposed to harassment in the workplace by way of social media.
  4. Litigation in Canada for Overseas Workplace Human Rights Violations Now More Likely.  In Araya v. Nevsun Resources Ltd., the British Columbia Supreme Court ruled that a lawsuit commenced in Canada by Eritrean miners may proceed.  The miners allege they were forced to work in a mine, located in Eritrea, owned by a Canadian mining company.  This is the first time that foreign claimants have been able to proceed to trial in a lawsuit in Canada against a Canadian company for alleged human rights abuses overseas (based on violations of customary international law).
  5. ONCA Raises the Bar for Enforcing Fixed Term Contracts.  In Howard v. Benson Group Inc., the Ontario Court of Appeal confirmed that, if an early termination provision in a fixed term contract is too ambiguous or vague to be enforced, the employee may be entitled to full wages for the remainder of the term of contract.  The employee will not have to make reasonable efforts to secure alternate income during the remainder of the fixed term unless there is a specific provision of contract to the contrary.
  6. Canada Pension Plan Enhancement Appears Imminent.  On October 6, 2016 the federal government introduced Bill C-26, which sets out amendments to the Canada Pension Plan.  If passed (and this appears likely), Bill C-26 will increase CPP contributions over 7 years, commencing in 2019.  Among other things, Bill C-26 would increase the maximum CPP benefit from 25% of earnings to 33% of earnings (up to the year’s maximum pensionable earnings).
  7. Independent Contractor Class Action Certified in Canada.  In Omarali v. Just Energy, an Ontario court certified a class action against Just Energy, a natural gas and electricity retailer.  In this case, 7,000 of Just Energy’s sales agents claimed they were misclassified as independent contractors. This case is the first of its kind to be certified in Canada.  If the sales agents are successful, the company could face significant liability for unpaid wages (including overtime, vacation and public holiday pay), and for failure to apply statutory deductions.
  8. New Privacy Tort – Public Disclosure of Embarrassing Private Facts.  In Jane Doe 464533 v. N.D., the Ontario Superior Court of Justice recognized the tort of “public disclosure of embarrassing private facts”.  The tort requires the plaintiff to prove that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”.  It is likely that employers will now face claims for liability under this tort, including claims for vicarious liability.
  9. OHSA Amendments Strengthen Protections Against Workplace Harassment.  On September 8, 2016, portions of Bill 132 came into force, amending (among other things) Ontario’s Occupational Health & Safety Act.  These amendments increase protections against workplace harassment, which now expressly includes “workplace sexual harassment”.  Central to these amendments are more robust workplace investigation requirements.
  10. Court of Appeal Rules Termination Clause Without Benefits Continuation is Enforceable.  In Oudin v. Centre Francophone de Toronto, the Ontario Court of Appeal upheld a decision enforcing a termination clause that established a termination notice period without mentioning benefits continuation.  While enforceability will continue to turn on the language of the employment contract in issue, this case marks a departure from a recent trend towards striking down termination clauses.