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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.

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

This is an update to our recent blog post summarizing the measures the federal government has implemented to assist Canadian employers and employees. You can find the first part of our post here.

On March 24, 2020, Canada passed Bill C-13. It introduces and implements measures by the federal government to provide financial assistance to employers and employees across the country.
Continue Reading Federal Government’s Act (C-13) to Provide Financial Assistance to Employers and Employees

Today, after an official announcement that Canada and the United States have restricted all non-essential travel between the countries, Prime Minister Justin Trudeau and Minister of Finance Bill Morneau also announced a variety of measures intended to economically assist Canadians during the COVID-19 pandemic.

Below is a summary of the employment-related measures that have been confirmed so far. This is a rapidly evolving situation and we anticipate further changes and clarifications in the coming days. We are monitoring the situation closely, and will continue to communicate updates as soon as they become available.
Continue Reading COVID-19 Update: Federal Government Restricts Border Crossings and Announces Measures to Assist Canadian Employers and Employees

The Supreme Court of Canada will decide if an employee is entitled to payments owed in the event of a corporate acquisition despite the fact that the employee resigned over a year before the triggering event. On January 31, 2019, the SCC granted leave to appeal in Matthews v. Ocean Nutrition Canada Limited. The employee asserts that he is entitled to over $1 million in profits following the acquisition of his former employer – even though he had resigned 13 months before the transaction. If the SCC decides in the employee’s favour, employers may face more challenges (and increased litigation) when seeking to enforce limiting clauses in employment agreements.
Continue Reading Supreme Court to Decide if Bad Faith Employer Conduct Nullifies Limit on Incentive Compensation