To wrap up 2022 and prepare for 2023, we highlighted key developments in Canadian labour and employment law:
1. COVID-19 Update
Workplace Vaccination Policies
Mandatory vaccination policies remained a prevalent issue in 2022. The first decisions to provide guidance on this topic came out of unionized workplaces, with many upholding vaccination policies.
In Toronto District School Board v CUPE, Local 4400, Arbitrator Kaplan upheld the employer’s vaccination policy which stated that unvaccinated employees would be placed on unpaid leaves of absence. Arbitrator Kaplan found that the policy was a reasonable exercise of management rights and that it did not violate the individual’s right to life, liberty or security of the person under s. 7 of the Charter of Rights and Freedom. Similarly, in Power Workers’ Union v Elexicon Energy Inc., Arbitrator Mitchell found an employer’s policy which required employees to be vaccinated with three doses to be reasonable in the circumstances.
While most labour arbitration decisions to date have favored employers, some have not. In FCA Canada Inc. v Unifor, Locals 195, 444, 1285, Arbitrator Nairn held that a policy which required two doses of the vaccine was no longer reasonable in light of evolving scientific evidence. She cautioned that the reasonableness of mandatory vaccination policies would be assessed on a case-by-case basis by looking at a workplace’s particular circumstances in the context of the changing nature of the pandemic.
In the non-unionized context, the British Columbia Supreme Court in Parmar v Tribe Management Inc. confirmed an employer’s right to place an employee on an unpaid leave of absence for failing to comply with a mandatory vaccination policy. The Court found the employer’s policy to be reasonable given the state of the pandemic at the time it was introduced, and in light of the employer’s health and safety obligations. The Court found that Ms. Parmar was not constructively dismissed when she was placed on unpaid leave for non-compliance with the policy.
Employers should monitor public health directives and review their mandatory vaccination policies regularly to ensure that they remain reasonable and appropriate as circumstances change.
Status of COVID-19 Leaves of Absence
Several provinces implemented paid and unpaid job-protected leaves at the onset of the pandemic for employees who were unable to work for reasons related to COVID-19. Most of these programs have ended or are set to expire within the next few months.
In Ontario, the paid Infectious Disease Emergency Leave (IDEL) still provides workers with up to three days of paid infectious disease emergency leave until March 31, 2023. Employees are also entitled to take unpaid leave if they are not performing their duties because of reasons related to a designated infectious disease. However, deemed IDEL came to an end on July 30, 2022, so non-unionized employees are no longer deemed to be on IDEL if their hours are temporarily reduced or eliminated because of COVID-19. More information on this topic can be found on our blog post here.
In British Columbia, employees are still entitled to an unpaid COVID-19-related leave for as long as they are unable to work. The legislative amendment providing employees with an additional three days of paid COVID-19-related leave was repealed in December 2021. However, all employees based in the province may now take up to five paid sick days per calendar year for any injury or illness, including COVID-19.
In Alberta, all employees who are required to quarantine due to COVID-19 are still eligible for up to 14 days of unpaid, job-protected leave.
2. Employment Terminations Update
Reductions in Force (“RIFs”)
With a drastic slowdown in economic growth in the second-half of 2022, many employers engaged in restructuring. As the market continues to consolidate, this is a trend we believe will continue into 2023.
With group terminations in particular, employers must carefully navigate legislative and contractual obligations to reduce liability. Examples of things employers need to look out for when restructuring include: group termination obligations regarding notice and notification to employment standards directors where appropriate; avoiding discrimination claims by applying objective criteria when selecting employees for redundancy; ensuring employees are provided with their minimum contractual and statutory entitlements to wages, benefits, incentives, etc.; and effectively dealing with any spin-off litigation.
Our In Focus video series titled “Implementing a Reduction in Force in Canada: Mitigating Risks Arising from Major Workforce Changes” addresses these issues and liabilities in greater detail – we encourage any employer considering a RIF to watch these videos.
In Render v. ThyssenKrupp Elevator (Canada) Limited Group, the Ontario Court of Appeal redefined wilful misconduct as that term is understood under the Employment Standards Act, 2000 (“ESA“) and confirmed the modern day approach to assessing sexual harassment in the workplace.
The Ontario Court of Appeal determined that an employee who slapped a female co-worker on her behind did not commit wilful misconduct under the ESA, and was therefore entitled to his minimum entitlements thereunder, but was not entitled to common-law notice.
The Court of Appeal reiterated that proving wilful misconduct under the ESA is more onerous than proving just cause at common-law and found that, in order to prove wilful misconduct under the ESA, an employer must prove that the employee’s misconduct was both intentional and preplanned. Please refer to our full blog here for a more detailed analysis of this case.
3. Bill 124 Struck Down for Being Unconstitutional
In Ontario English Catholic Teachers Assoc. v. His Majesty, the Ontario Superior Court of Justice held that Bill 124, Protecting a Sustainable Public Sector for Future Generations Act (the “Act“), was void and of no effect.
Bill 124, originally introduced in June 2019, limited salary increases for public sector employees to 1% per year during a three-year “moderation period”. For a detailed blog post on Bill 124, please go here.
Labour organizations challenged the constitutionality of Bill 124 on the basis that it limited the freedom of association, freedom of speech and equality rights of their members under the Canadian Charter of Rights and Freedoms. Ontario denied any infringement and argued, in the alternative, that if Bill 124 did infringe on any Charter rights, it was saved by s. 1 of the Charter.
The Court sided with the labour organizations and struck down the Act for being unconstitutional. The Court held that while the Act did not breach the organizations’ freedom of speech and equality rights, it did violate the right to freedom of association because it substantially interfered with collective bargaining. The Court also found that Bill 124 was not a reasonable limit on a right that could be demonstrably justified in a free and democratic society under s. 1 of the Charter. The consideration of remedies was deferred to a further hearing.
The Ontario government announced that it would appeal this decision. At this time, Bill 124 is not in effect.
4. Immigration Compliance Changes
Immigration, Refugee, and Citizenship Canada (IRCC) incorporated new compliance requirements in its regular audits on employers engaging in the Temporary Foreign Work Permits program. These requirements aim to enhance protections for temporary foreign workers (TFWs) in Canada. Notably, audits now require documentation which had not previously been asked of employers, including proof that TFWs received a pamphlet with information on their rights in Canada, and proof that the company complied with recruitment law in the applicable province, among other things. Please consult our full blog post here for more information on these changes.
5. Federal/Ontario Legislation
Competition Act Changes
The Government of Canada amended the federal Competition Act to criminalize wage-fixing and no-poach agreements between employers, effective June 23, 2023.
The amendments introduced provisions criminalizing any agreement between employers to fix, maintain, decrease or control wages (wage-fixing agreements) or terms and conditions of employment, or which prohibit employers from soliciting or hiring each other’s employees (no-poach agreements). This prohibition will apply to all employers, regardless of whether they compete directly with each other.
The criminalization of no-poach, wage-fixing and other employment-related agreements is something all employers should be wary of. Employers can face fines and executives can potentially face prison time. Consistent with amendments that will remove the existing cap on criminal fines that apply to anticompetitive, buy-side competitor agreements (currently CAD $25M), the employment-related prohibitions will similarly have no maximum. In addition, private parties can also pursue civil actions, including class actions, against employers for breach of these provisions.
Before the amendments come into effect, employers should review existing agreements, conduct a risk assessment, and update internal policies and compliance programs. We have provided more detail on these changes and recommended actions for employers in our blog post here.
Bill 26 – Strengthening Post-secondary Institutions and Students Act, 2022
On December 8, 2022, Bill 26 – Strengthening Post-secondary Institutions and Students Act, 2022, received royal assent. Most of the changes mentioned below will come into effect on July 1, 2023, and will transform how post-secondary institutions and private career colleges address sexual misconduct by faculty and staff.
Key changes include the following:
- Amending the Ministry of Training, Colleges and Universities Act (the “Act“) to include a definition of “sexual misconduct,” defined as sexual relations, sexual touching, or remarks of a sexual nature that constitute an offence under the Criminal Code, that infringes the right of a student to be free from a sexual solicitation or advance under the Human Rights Code, and/or that contravenes an institution’s sexual abuse and misconduct policies or any other rule or requirement of the institution respecting sexual relations between employees and students.
- Amending the Act to stipulate that any discharge or discipline by an institution for sexual misconduct is for just cause.
- Preventing an institution from rehiring an employee who was discharged or who resigned after they were found to have committed sexual misconduct.
- Preventing institutions from entering into agreements which would preclude the institution from disclosing that an allegation has been made against an employee who committed an act of sexual misconduct.
- Requiring all institutions to have an employee sexual misconduct policy.
In light of these upcoming changes, post-secondary institutions and private career colleges in Ontario should review their policies to ensure compliance. We have provided more detail on this legislative change in this blog post.
Bill 88 – Working for Workers Act, 2022
On April 11, 2022, Bill 88 received royal assent, introducing significant changes to a number of employment-related statutes and introducing the Digital Platform Workers Rights Act, 2022.
The most significant changes introduced by Bill 88 are:
- It made certain business consultants and information technology consultants exempt from the hours of work provisions, overtime provisions, and termination pay and severance obligations of the Employment Standards Act, 2000.
- It required employers with twenty-five or more employees 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.
- It enacted the Digital Platform Workers Rights Act, 2022, which establishes rights for workers who perform digital platform work. This new Act provides that digital platform operators must provide workers with:
- information on how pay is calculated;
- the right to a recurrent pay period and pay day, minimum wage for each work assignment performed by a worker, and amounts earned and tips and other gratuities;
- the reasons for being removed from a platform, and be given two weeks’ written notice if access is removed for more than twenty-four hours;
- the right to be free from reprisal and to resolve work-related disputes with platform operators in Ontario; and
- record-keeping obligations for platform operators, director liability provisions, and detailed complaints and enforcement provisions.
Please refer to our full blog post here for more details regarding Bill 88.
6. Quebec Legislation
Bill 59 – An Act to modernize the occupational health and safety regime
In October 2021, the Quebec Government passed Bill 59, which makes substantive changes to statutes involving health and safety in the workplace. These changes will gradually come into effect, with some already in force since October and others coming into force from now until 2024.
The Bill introduces new provisions to the Act respecting occupational health and safety (the “AOHS”), including the following:
- Workplaces with 20 or more workers must establish and implement a prevention program that is specific to the workplace. Workplaces with less than 20 employees must establish an action plan to eliminate or reduce dangers to health, safety, and wellbeing.
- All workplaces with 20 or more workers must establish a health and safety committee. Committees must include at least one individual that represents the workers and another that represents the employer.
- Employers are obligated to take necessary measures to ensure the protection of a worker exposed to violence in the workplace.
- The AOHS applies to teleworking, where applicable.
The Bill also introduces new provisions under the Act respecting industrial accidents and occupational diseases, such as a presumption of reinstatement for a worker who has suffered an employment injury and a Regulation that contains a list of diseases that are presumed to have been contracted in the workplace.
More information can be found in our blog post here.
Bill 64 – An Act to modernize legislative provisions as regards the protection of personal information
On June 12, 2020, the Quebec government introduced Bill 64. The first round of requirements brought on by Bill 64 came into force on September 22, 2022.
The Bill proposes to modernize the existing framework applicable to the protection of personal information by amending various public, and private sector Quebec laws, to align closer with the requirements under the federal Personal Information Protection and Electronic Documents Act and the European General Data Protection Regulation.
The Bill will also significantly impact Quebec’s private sector laws on privacy – the Act respecting the protection of personal information in the privacy sector.
Key provisions of the proposed Bill include:
- Greater fines and administrative penalties for privacy violations.
- Requiring businesses to appoint an individual to be responsible for overseeing the protection of personal information.
- Requirements for breach notifications when a “confidentiality incident” presents a “risk of serious injury” to the impacted individual.
- A mandatory obligation for organizations to conduct a privacy impact assessment.
- Requiring organizations to conduct a privacy impact assessment to ascertain whether information transferred outside of Quebec will receive a level of protection equivalent to the one granted under the Act.
- More details around the type of disclosures that must be available to individuals upon collecting their information.
- Additional rights to a person to whom personal information relates.
Additional information on Bill 64 can be found in our detailed post here.
Bill 96 – An Act respecting French, the official and common language of Québec
On June 1, 2022, Quebec passed Bill 96, An Act respecting French, the official and common language of Québec. Bill 96 introduces significant changes to the Charter of the French Language and other laws.
Among the changes, Bill 96 requires employers to:
- Provide mandatory employment documentation in French, as well as written communications unless an employee requests that such communications be in another language. This includes things like job application forms, group benefits information, and training documents, with no exception.
- Provide individual employment contracts that are contracts of adhesion in French (i.e., contracts where the terms are imposed on the employee and which are non-negotiable).
- Make job postings available in French in a comparable manner as their non-French version.
Most of these amendments came into force on June 1, 2022, but parties have one year from the Act’s effective date to translate any required documents to French. Employers that fail to implement these and the many other requirements imposed by Bill 96 could face fines up to $30,000 for a first offence. For our full blog outlining the new requirements imposed by Bill 96, please go to our blog here.