On March 23, 2020, both Ontario Premier Doug Ford and Quebec Premier François Legault announced a major development in the management of the COVID-19 crisis in each of their provinces: the immediate shut down of all non-essential services , effective Tuesday March 24, 2020 at 11:59 p.m. EST. The Ontario shutdown is for at least two weeks, while Quebec’s shutdown is for at least three weeks.
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Decision Delivers Dependent Contractor Status to Foodora Workers
Claims alleging the misclassification of workers as independent contractors rather than employees are widespread. Properly classifying a worker’s status is critical because it determines substantive legal rights. In addition to independent contractors and employees, in Canada, there is a hybrid category — dependent contractors. To be classified as a dependent contractor, the contractor must be “economically dependent” on a particular client. Dependent contractor status may be found even where a worker conducts business through a corporation and hires employees to assist in the performance of the work.
In a significant decision, Canadian Union of Postal Workers v. Foodora Inc., the Ontario Labour Relations Board (the Board) held that couriers delivering food on behalf of Foodora Inc., an app based food delivery company, were dependent contractors under the Labour Relations Act, 1995 (the Act) and thus have the right to unionize under the Act. This is one of the first decisions commenting on the status of workers in the gig economy.
Eating Your Greens – Cannabis Edibles, Extracts and Topicals Become Legal
On October 17, 2018, Canada legalized the production, distribution and sale of recreational cannabis. Several classes of cannabis became legal including fresh and dried flowers, seeds, plants and oils for recreational purposes. At the time, the federal government set a staggered date for legalizing cannabis derived products, such as edible cannabis, to allow for public consultation.
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Beyond the Playground: Stamping out Workplace Cyberbullying
Forty percent of Canadian workers experience bullying on a weekly basis. Moreover, 7% of adult internet users in Canada self-reported experiencing cyberbullying at some point in their life. The most common form of cyberbullying involves receiving threatening or aggressive emails or instant messages.[1]
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Harassment or Blue Collar Culture? A New Standard for Shop Floor Conduct
Recent arbitration decisions confirm that conduct amounting to harassment or bullying will not be tolerated in unionized workplaces and that an appropriate investigation needs to be carried out in response to a complaint. The approach is consistent with decisions concerning harassment in non-union workplaces, increased legislative protections for workers and a changed social climate brought on by the #MeToo movement.
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Independent Contractors Entitled to Reasonable Notice on Dismissal?
In 2016, the Ontario Court of Appeal confirmed that dependent contractors are entitled to reasonable notice of termination. In a recent decision, Cormier v 1772887 Ontario Limited cob as St. Joseph Communications, (“Cormier“) the Ontario Superior Court of Justice extended this principle – commenting that service as an independent contractor should be considered in calculating the reasonable notice period in certain circumstances.
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Highest Court Rules Quebec Franchisee Was Employee, Not Independent Contractor, Under Provincial Statute
In a recent decision, Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, the majority of the Supreme Court of Canada (“SCC”) held that a cleaner who had a franchise agreement with a cleaning company was actually an employee, not an independent contractor. This “employee” determination, however, was in the context of a very particular legislative regime, which applied to the specific franchise relationship. Since the cleaner offered his cleaning services in public buildings, he was covered by a collective agreement, the Decree respecting building service employees in the Quebec region (“Decree”), which sets out minimum standards in the workplace (wages, hours of work, overtime, etc.) and is governed by the Act respecting collective agreement decrees (“Act”). With the scope of its provisions being “public order”, the Decree can apply to any contract where an individual is in a relationship determined to be that of “employee” within the meaning of the Act.
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Ready to Bargain with the Union? Court-Appointed Receivers at Heightened Risk of Successor Employer Determination
Successor rights are a long standing fixture in Ontario’s labour relations legislation. Generally speaking, under s. 69 of the Labour Relations Act (LRA), the purchaser of a business effectively steps into the seller’s shoes for the purpose of labour relations and becomes bound by any collective agreement that the seller is party to, unless the Ontario Labour Relations Board (OLRB) declares otherwise. The same principle applies where the business is leased, transferred or otherwise disposed of. The fundamental purpose of s. 69 of the LRA is to preserve the bargaining rights of the Union. The idea is that once the Union has been recognized with respect to a particular business, the Union may pursue that bargaining right when all or part of the business is sold.
Whether successor rights extend to the context of court-appointed receiverships had been an unsettled area. Recently, the OLRB determined that a court-appointed receiver that actively operated the debtor’s business through its agent was a successor employer for the purpose of s. 69 of the LRA: United Food and Commercial Workers International Union, Local 175 v Rose of Sharon (Ontario) Community cob as Rose of Sharon Korean Long-Term Care Home, 2018 CanLII 32988 (Rose of Sharon). We outline key aspects of the OLRB’s decision below.
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Back in Class: Overtime Pay Class Action Brought Against Global Travel Retailer
Overtime class actions are in the headlines again. On February 22, 2019, a class action claim seeking damages of over $100 million was filed against Flight Centre, an Australia-based travel services provider with stores in Canada and internationally. The claim alleges that Flight Centre systematically failed to pay overtime to its retail sales employees, referred to as “travel consultants”, requiring them to consistently work more than their scheduled hours, and implemented policies that fail to comply with the overtime entitlements under employment standards legislation.
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Privacy Tort Update – Not So Fast on Public Disclosure of Embarrassing Private Stuff
Around this time last year, we blogged about the decision of the Ontario Superior Court of Justice (the “ONSC”) in Jane Doe 464533 v ND (“Jane Doe“), a case that effectively created a new privacy tort – “public disclosure of embarrassing private facts” (you can read our post here). It was a tort that responded to a disturbing trend on the internet where embarrassing images or videos of people are posted without their consent.
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