To ring in the New Year, we highlight the ten most significant developments in Canadian labour and employment law in 2017:

  1. Supreme Court of Canada gives an expansive interpretation of workplace discrimination protections in British Columbia.  In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the SCC concluded that the British Columbia Human Rights Code prohibits discrimination against employees–regardless of who their employer is and who the perpetrator is–whenever that discrimination has a “sufficient nexus with the employment context”.  As a result of this interpretation, an employee’s human rights complaint against the perpetrator’s employer was upheld, even though the complainant was employed by a separate employer.
  2. Ontario government introduces substantial amendments to workplace legislation.  The Fair Workplaces, Better Jobs Act, 2017 received royal assent on November 27, 2017, amending Ontario’s Employment Standards Act, 2000, Labour Relations Act, 1995, and Occupational Health and Safety Act (“OHSA”).  Changes include increases to minimum wage, the expansion of pay equity protections, the introduction of paid leave requirements, new information sharing requirements during the union certification process, and the extension of parental leave to correspond with changes under the federal Employment Insurance Act.
  3. The Employment Insurance Act is amended to extend benefits associated with parental leave and caregiving leave.  Employment Insurance benefits were enhanced on December 3, 2017 under Bill C-44, allowing for the payment of parental benefits over a period of 61 weeks at a lower benefit rate, and allowing maternity benefits to be paid as early as the 12th week before the expected week of birth,  The changes also create a benefit for family members to care for a critically ill adult or child.
  4. Ontario Superior Court awards significant damages under the “tort of harassment”.  In Merrifield v. Attorney General, 2017 ONSC 1333, the Ontario Superior court clarified the current state of the law with respect to the tort of harassment in Ontario, confirming it is distinct from the tort of intentional infliction of mental suffering.   For example, the tort of harassment does not require proof that the Plaintiff has suffered a visible and provable illness.
  5. Alberta makes substantial amendments to workplace legislation.  Alberta’s workplace legislation was substantially amended under the Fair and Family-friendly Workplaces Act and An Act to Protect the Health and Well-being of Working Albertans, including removing of the maximum insurable earnings cap on workers’ compensation insurance, enhancing coverage for psychological injuries, and increasing protections for workers against workplace violence and harassment.
  6. Ontario government seeks to strengthen occupational health and safety protections and insurance benefits.  Under Bill 177, the Ontario government implemented substantial amendments to the Workplace Safety and Insurance Act, 1997  (“WSIA”) and the OHSA.  For example, under the WSIA, the distinction between entitlements for chronic and traumatic mental stress is now eliminated.  Under the OHSA, maximum fines for corporations are increased from $500,000 to $1,500,000.  Furthermore, the limitation period for charging an employer under the OHSA has been expanded to include a “discoverability” component–charges may now be brought within a year from the date the Ministry of Labour Inspector becomes aware of an alleged offence, rather than from the date that the alleged offence occurred.
  7. Supreme Court of Canada confirms policy requiring proactive disclosure of drug addiction is appropriate in certain circumstances.  In Stewart v. Elk Valley Coal Corp, 2017 SCC 30, the Supreme Court of Canada upheld a decision of the Alberta Human Rights Tribunal in which a worker who tested positive for drugs following a workplace accident was found to have been terminated because he breached the employer’s drug policy, and not for discriminatory reasons.  The drug policy in issue required employees with substance dependence or addiction issues to report their issues before a drug-related incident occurred.
  8. Ontario Divisional Court provides guidance with respect to when it is appropriate for an employer to seek an independent medical examination.  In Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517, the Ontario Divisional Court held that an employee’s duty to accommodate may permit, or even require, the employer to ask for a second medical opinion where the employer has a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert.
  9. Federal government introduces legislation that will legalize recreational use of marijuana.  In 2017, the federal government introduced the Cannabis Act under which the recreational use of marijuana will be legalized in Canada.  Generally speaking, employers will treat non-medical marijuana usage like alcohol in the workplace, but there will be some unique issues to address, including the fact that employers will likely not have access to “current impairment” testing.
  10. Ontario Court of Appeal confirms new employment sufficient consideration in asset sale.  In Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873, the Ontario Court of Appeal reaffirmed the principle that a purchaser of the assets of a business (as opposed to the purchaser of shares) is free to offer employment on new terms to employees of the vendor, and can rely on the resulting employment agreement as binding without further consideration.