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Special thanks to our former articling student, Eloise Somera.

In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines“), the British Columbia Court of Appeal upheld the BC Human Rights Tribunal’s decision that a change in employment terms is not a necessary precondition to a finding of prima facie discrimination based on family status.

The Relevant Legal Tests

In Moore v. British Columbia (Minister of Education), 2012 SCC 61 (“Moore“), the Supreme Court of Canada outlined the test for establishing discrimination in the workplace:

  • The employee must first demonstrate prima facie discrimination by proving that:
    • they have a characteristic protected under human rights legislation;
    • they have experienced an adverse impact; and
    • the protected characteristic was a factor in the adverse impact.
  • If an employee establishes prima facie discrimination, the burden then shifts to the employer to justify its requirement as a bona fide occupational requirement that cannot be accommodated without undue hardship.

In conjunction with this general test, the British Columbia Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”) elaborated on what is required to prove prima facie discrimination based on family status. The Campbell River test requires an employee to prove:

  • a change in a term or condition of employment by the employer; and
  • that the change resulted in a serious interference with a substantial parental or other family duty or obligation.

The Campbell River test was reaffirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Suen”).

Factual BackgroundContinue Reading A Change in Employment Terms is No Longer Required to Constitute Prima Facie Family Status Discrimination – The British Columbia Court of Appeal Clarifies

Special thanks to Eloise Somera (articling student in our Toronto office) for co-authoring.

Before the end of 2023, and every three years thereafter, all businesses or non-profits with twenty or more employees in Ontario must confirm their ongoing compliance with the accessibility requirements under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) and submit an accessibility compliance report to the Ontario Government. The same reporting requirement applies to designated public sector organizations, but they must submit an accessibility compliance report every two years.

Failure to submit an accessibility compliance report can lead to significant penalties and fines by the Ontario Ministry of Labour (the Ministry).

Required Self-Assessment

AODA’s accessibility compliance report is intended to be an organization’s self-assessment of its compliance with Ontario’s accessibility requirements, including a confirmation that the organization is complying with the Accessibility Standards. The types of questions a business must answer will depend on what organization category it falls into (i.e., business or non-profit, designated public sector, or Ontario public service/Ontario Legislative Assembly). This is because different businesses are subject to different accessibility requirements under AODA. (Electronic copies of the applicable form can be downloaded on the government’s website here.)

As a business, non-profit, or a designated public sector organization, the organization can expect to answer questions regarding whether it:

  • employs any person with disabilities for whom it has provided individualized workplace emergency response information;
  • provides appropriate training on AODA, which includes the Integrated Accessibility Standards Regulation;
  • provides appropriate training on Ontario’s Human Rights Code as it pertains to people with disabilities; and
  • has implemented a multi-year accessibility plan, and if yes, whether that plan is posted on the organization’s website, and whether it is updated at least once every five (5) years.

Continue Reading Workplace Accessibility Reports Under Ontario’s AODA Due By December 31, 2023

On March 20, 2023, Bill 79, Working for Workers Act, 2023, carried on a first reading in the Ontario legislature. If passed, Bill 79 will significantly amend several employment-related statutes and expand on legislative changes introduced in the Working for Workers Acts, 2021 and 2022.

Summary of Key Changes

The most important potential changes include:

  • Mass Termination: Employees who work remotely from home will be included in the count for mass termination provisions under the Employment Standards Act, 2000 (“ESA“). The result is that remote employees will receive the same eight-week minimum notice of termination or pay-in-lieu as their in-office colleagues. Currently, the meaning of “establishment” under the mass termination provisions only encompasses the physical location at which an employer carries on business, and does not include an employee’s private residence. If Bill 79 is passed as currently drafted, the proposed amendments to the mass termination provisions will come into force on the later of July 1, 2023, or the date on which Bill 79 receives Royal Assent.
  • Health and Safety: The maximum fine that may be imposed on a corporation convicted of an offence under the Occupational Health and Safety Act will increase from $1.5 million to $2 million.
  • Reservist Leave: The Employment Standards Act, 2000 will be amended to entitle an employee who is in treatment, recovery or rehabilitation in respect of a physical or mental health illness, injury or medical emergency that results from participation in certain operations or activities to reservist leave. Further, reservists who are deployed to emergency operations inside Canada will be entitled to take this leave immediately regardless of the length of their employment, and the length of employment required to take this leave for all other reasons will be reduced from three months to two months.
  • Personal Information in Post-Secondary Education: Section 15 of the Ministry of Training, Colleges and Universities Act will be amended to permit the collection, disclosure and use of personal information for purposes related to certain employment programs and services. This includes disclosing personal information to persons or entities that administer, evaluate or deliver employment programs or services funded by the Ministry of Labour, Immigration, Training and Skills Development for the purpose of administering and delivering those programs or services.
  • Temporary Foreign Workers: The Employment Protection for Foreign Nationals Act, 2009 will be amended to increase penalties employers and people who are convicted of taking possession of or retaining a foreign national’s passport or work permit. For individuals, the penalty will increase to a fine of not more than $500,000 and/or imprisonment for a term of not more than 12 months. For corporations, the penalty will increase to a fine of not more than $1,000,000.
  • Job Information Transparency: Employers will be required to provide employees starting a new job with information about their job, such as pay, work location and hours of work, and the date by which that information needs to be provided. These draft regulations have not been published yet, but we will continue to monitor this significant amendment closely.

Continue Reading Bill 79, Working for Workers Act, 2023 Carries on First Reading, with Potential for Major Changes Ahead

Special thanks to Oscar Ramirez (articling student in our Toronto office) for co-authoring this blog.

In Celestini v. Shoplogix Inc., 2023 ONCA 131, the Ontario Court of Appeal recently upheld a motion judge’s award of over $400,000 to an employee on the basis of the changed substratum doctrine.

What is the changed substratum doctrine?

The changed substratum doctrine recognizes that the employment relationship evolves over time such that sometimes it may be inappropriate to apply the provisions of an out-dated employment contract to a job that has changed significantly. The doctrine applies in situations where the employee’s duties have fundamentally expanded to a point where the underlying employment contract has substantially eroded, or it can be implied that the employment contract could not have been intended to apply to the employee’s latest role.

Factual background

In 2005, Mr. Celestini became Shoplogix Inc.’s Chief Technological Officer through a finance arrangement with a venture fund. As part of the deal, he would step down as Shoplogix’s CEO and serve as its CTO under a written employment contract, which he signed in 2005. The employment contract limited Mr. Celestini’s entitlements upon termination of employment.

In 2008, Mr. Celestini and Shoplogix entered into an Incentive Compensation Agreement (“ICA“) which significantly altered Mr. Celestini’s bonus entitlements. Shoplogix did not amend the 2005 employment contract at this time.

There was an expansion of Mr. Celestini’s workload and responsibilities that coincided with the execution of the ICA and a change in leadership. His new responsibilities included: “managing important aspects of sales and marketing; directing managers and senior staff who were reassigned to report to him; travelling to pursue international sales; handling all of the company’s infrastructure responsibilities; and soliciting investment funds.”

In 2017, Shoplogix terminated Mr. Celestini without cause. Shoplogix took the position that Mr. Celestini’s rights were governed by the employment contract he signed in 2005. But Mr. Celestini argued that the termination provisions in the 2005 contract were unenforceable because of the substantial changes to his position, and he was therefore entitled to reasonable notice at common law. He claimed he was entitled to common law damages for wrongful dismissal on the basis that Shoplogix breached the implied term to provide reasonable notice of termination.Continue Reading The Changed Substratum Doctrine Strikes Again – Ontario Court of Appeal Upholds Massive Damages Award Where Employee’s Duties Significantly Expanded

Special thanks to Sarah Adler, Immigration Legal Counsel.

Our webinar was designed to bring Canadian in-house counsel and human resources leaders up to speed on the top labour, employment and human rights law developments of 2022 and to prepare them for what’s on the horizon in 2023.  

Using our “quick hits” format, we…

Special thanks to Brendan O’Grady (a senior associate in our Litigation & Government Enforcement Practice Group) and Anton Rizor (articling student in our Toronto office) for co-authoring this blog.

In Flesch v Apache Corporation, the Alberta Court of Appeal (“ABCA”) upheld the certification of an employee class action arising out of the cancellation of…

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 …

The new year brings new challenges for employers. Join us as we take stock of changes over the last year and strategize for what’s on the horizon. 

In our 75-minute “quick hits” format, we’ll help Canadian in-house counsel and human resources leaders track what to keep top-of-mind for 2023. We’ll also provide practical takeaways to help…

As we near the end of 2022 and bonus season is right around the corner, now is a great time for employers to review and update their employment agreements. In order to make changes to an existing employment agreement, the employer must give the employee “consideration.” Without consideration, the changes would not be enforceable.

Consideration…

Summary

On November 14, 2022, Bill 26 – Strengthening Post-secondary Institutions and Students Act, 2022, passed second reading in the Ontario legislature. If passed, Bill 26 will be effective on July 1, 2023, and will transform how post-secondary institutions and private career colleges address sexual misconduct by faculty and staff.

Bill 26’s key changes…