Photo of Jennifer Bernardo

Jennifer Bernardo has a broad trial and appellate advocacy practice, with a focus on labour, employment, and administrative law. She has acted as lead counsel in grievance arbitrations, administrative proceedings, and trials, and has served as junior counsel on judicial reviews, corporate/commercial trials and appeals, class actions, and complex labour and employment hearings and appeals. In addition to her litigation practice, Jennifer advises clients on contentious and non-contentious workplace issues, such as employment standards requirements, workplace accommodation, discrimination and harassment, collective bargaining and labour relations, and reductions in force, as well as issues relating to international labour and human rights standards, corporate compliance and risk management, and internal investigations.

In light of recent social justice movements, businesses are increasingly aware of issues pertaining to diversity and inclusion, making it essential for employers to take proactive steps to address inequality in the workplace. Our presenters explore how to set up special programs under human rights legislation, and discuss best practices for advancing substantive equality in

As COVID-19 vaccines become more readily available across Canada, employers have questions about how this changes the return to the workplace. In this Quick Chat video, our Labour and Employment lawyers discuss the vaccine policies and procedures being adopted by companies operating in Canada, as well as the legal and practical considerations to address.

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Following almost a year of uncertainty, the Ontario Superior Court finally clarified that temporary layoffs during the COVID-19 pandemic can amount to constructive dismissal under the common-law. Ontario employers should take note of this important decision if they have or are considering temporary staffing cuts, including temporary reductions in hours.
Continue Reading COVID Layoffs Can Lead to Employer Liability, Ontario Court Says

On June 26, 2020, the Supreme Court of Canada released its decision in the highly publicized case of Heller v Uber Technologies Inc. The case arises from a Toronto-based UberEATS driver’s effort to bring a $400-million class action against Uber, on behalf of Uber and UberEATS drivers in Ontario. Mr. Heller alleged that Uber violated the Employment Standards Act, 2000 by treating Uber and UberEATS drivers as independent contractors and failing to provide them with employment-related entitlements like minimum wage, vacation, and overtime pay.

The issue before the Court was the validity of an arbitration clause in a standard form service agreement. The agreement was governed by the law of the Netherlands and required drivers to litigate their disputes with Uber in the Netherlands. Uber required all of its prospective drivers to enter into this agreement by having them accept the terms through their app. The Court ruled in favor of the drivers, finding that the arbitration clause was unconscionable because its terms effectively made it effectively impossible for the drivers to arbitrate their claims.

As a result of the decision, the class action can proceed to a certification motion.

Key Takeaways

Employers with arbitration clauses in their employment contracts or independent contractor agreements must revisit their agreements to determine whether they continue to be valid in Canada. Based on the Court’s decision, employers should not have arbitration clauses that require employees to pay substantial upfront fees to initiate the process. Employers should also consider whether they should pay the administration fees required for private arbitration, subject to the company’s right to a refund of those fees if it is successful in arbitration. If employers choose to keep arbitration clauses, they should ensure that in-person hearings remain local.


Continue Reading Supreme Court of Canada Invalidates Uber Arbitration Clause in $400-Million Class Action

As COVID-related restrictions begin to be lifted, employers are properly focused on ensuring that their workplaces and workforces are prepared for reopening. However, there is some suggestion that full or partial reclosings, followed by subsequent reopenings, may need to occur until a vaccine is developed, mass immunity exists, or sufficient treatment methods are implemented. As

Our last installment focused on preparing physical workplaces for reopening, having regard to public health and occupational health and safety requirements. At this point, employers following along are alive to critical legal considerations that are unique to physical workplaces. In this installment of The Canadian Employers’ Reopening Playbook we discuss complex legal and practical considerations to return workforces to “COVID-prepared” workplaces.
Continue Reading The Canadian Employers’ Reopening Playbook (Part 3)

Planning the Return to Work Process

With the pandemic situation continuously evolving, it can be difficult to think about anything besides the immediate response. The early days of the pandemic required employers to act fast and make quick decisions to protect workers, safeguard client/customer relationships, and stabilize operations. But, as restrictions are gradually lifted, and we move beyond the immediate crisis phase, employers across Canada need to carefully plan how to reopen workplaces, resume operations, and get people back to work. A carefully planned and deliberate approach to reopening is required to protect workers in the short-term and remain resilient in the long-term.

This installment of The Canadian Employers’ Reopening Playbook will address key issues employers should consider when planning to reopen physical workspaces.
Continue Reading The Canadian Employers’ Reopening Playbook (Part 2)

Why Have a Playbook?

As provincial governments move towards reopening their economies and taking steps to return to normal, employers must balance a range of important – and, at times, conflicting – considerations.

Some of the key questions may seem obvious:

  • Are we allowed to reopen and if so, when, and with what restrictions?
  • What steps are required to keep employees and all other individuals who come into or onto our premises safe?
  • How do we get our employees back to work, and what if they don’t want to return at this time?
  • How will reopening impact the availability of government support programs for us and our employees?

Over the coming days, through a series of client alerts, we will explore these questions and more, providing detailed and practical guidance that employers can draw upon and adapt for their specific workplaces. The Canadian Employers’ Reopening Playbook will break down common employment-related issues employers should consider when:

  1. Planning the return to work process;
  2. Implementing the return to work process; and
  3. Operating in a changed environment.


Continue Reading The Canadian Employers’ Reopening Playbook (Part 1)

This is an update to our recent blog post summarizing the Canada Emergency Wage Subsidy (“CEWS”). You can find the first part of our post, which summarizes the government’s original announcement, here.

On April 11, 2020, the federal government passed Bill C-14, amending the Income Tax Act to create the CEWS. The subsidy provides financial support to eligible employers for wages paid to eligible employees for the period from March 15, 2020 to June 6, 2020 (divided into three qualifying periods), subject to a possible extension up to September 30, 2020.

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Q:        How does the program work?

A:        For each qualifying period, an eligible employer can claim, from the government, a capped wage subsidy for remuneration paid to each eligible employee.


Continue Reading Federal Government Creates Canada Emergency Wage Subsidy

On April 1, 2020, the Canadian government provided further details about its plan to help Canadian employers by providing a 3-month, 75% wage subsidy, retroactive to March 15, 2020.

Parliament will likely soon be recalled to consider, debate, and pass legislation to create the wage subsidy program. For now, the preliminary plan for the Canada Emergency Wage Subsidy is as follows:

  • The subsidy will be 75% of the first $58,700 normally earned by employees, or a maximum benefit of $847 per week, per employee. There is no limit on the amount that employers can claim, although entitlement will be based on the actual wages paid to employees.
  • Employers of all sizes will be eligible to participate, provided they meet the remaining criteria. As a result, the program will be available to sole proprietors, taxable corporations, and partnerships. Special rules are expected for employees who do not deal at arm’s length with the employer. Public sector entities will be excluded from the program, but it is unclear if the program will apply to “quasi-public” or “broader public” sector employers who receive a small percentage of funding from the government.


Continue Reading Federal Government Plans to Create Canada Emergency Wage Subsidy