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In the recent case of Bertsch v. Datastealth Inc., 2024 ONSC 5593 (Bertsch), an Ontario court upheld a termination provision that did not specify every detail. While recent decisions suggest that such provisions may have to be flawless to be enforceable, Bertsch is a welcome decision showing that employers do not necessarily have to meet that high bar to protect themselves.

Key Takeaways

Bertsch reminds employers of the importance of including clear and compliant termination provisions in employment agreements. Ontario employers should review their agreements to ensure they meet the requirements of the Employment Standards Act, 2000 to avoid potential legal challenges. Employers should continue to confirm their termination provisions are:

  1. Clear and unambiguous to avoid disputes and potential invalidation by the courts.
  2. Compliant with the ESA and its regulations.
  3. Inclusive of language stating that compliance with the ESA and whatever other entitlements are listed in the employment agreement satisfy any common law notice of termination or pay in lieu thereof.

Bertsch demonstrates that while courts will continue to closely scrutinize termination provisions in employment agreements, employers must only ensure that the provisions are legal and unambiguous. This provides some relief for Ontario’s employers by indicating that they do not necessarily have to rely on “perfect” termination clauses that reference all scenarios and laws in their employment agreements to enforce them.

Even with this positive decision for employers, we continue to encourage all Canadian employers to assess the enforceability of termination provisions in existing employment agreements.Continue Reading Don’t Let Perfect Be the Enemy of Excellent: Ontario Court Validates Termination Clause that is Unambiguous and Legal

Special thanks to our articling student Andie Hoang for contributing to this update.

In 2022, the Ontario government sought to establish a new legal framework for “digital platform work” through the introduction of the Digital Platform Workers’ Rights Act, 2022. It is now set to come into force on July 1, 2025. The Act, stemming from the Working for Workers Act, 2022, introduces new rights and protections for workers within the gig-economy. Specifically, the Act will apply to workers who perform “digital platform work” (such as ride share, delivery, or courier services) and “operators” who facilitate the performance of digital platform work through a digital platform.

Summary of Significant Changes

In conjunction with the Act, the Government of Ontario has recently published regulations that further clarifies the new rights and obligations under the Act. Key worker rights and new obligations include:

  • Right to a Minimum Wage: Digital platform operations will be required to pay a worker at least the minimum wage rate payable under the Employment Standard Act, 2000 (ESA), exclusive of tips and other gratuities, for each “work assignment” performed. Subject to specific exceptions, a “work assignment” will typically begin when a worker accepts a work assignment through a digital platform and ends when the worker performs the assignment.

Continue Reading A New Gig for Digital Platform Work: Ontario’s Legal Framework for Digital Platform Workers Comes into Force July 1, 2025

On October 28, 2024, Ontario’s Working for Workers Five Act, 2024 (Bill 190) received royal assent. Here’s what employers need to know:

Key Changes

  1. Prohibition on sick notes for ESA sick leave. Employers are prohibited from requiring an employee to provide a certificate from a qualified health care practitioner (i.e. a
…

In this 75-minute “quick hits” style session, our team provided practical advice to Canadian in-house counsel and human resources leaders and addressed what to keep top-of-mind for 2024.

Among other topics, we discussed:

  • Implications of Pay Transparency Legislation in British Columbia and
    • …

    Special thanks to our former summer associate Thanusa Sounthararajah for contributing to this update.

    On July 1, 2023, the Employment Standards Act, 2000 (“ESA“), was amended to require temporary help agencies (“THAs“) and recruiters to obtain a license to operate in Ontario as of January 1, 2024. In addition, the Ontario…

    Special thanks to our summer associate Keyonna Trojcak for contributing to this blog.

    On July 1, 2023, Ontario implemented a number of amendments to Regulation 854 – Mines and Mining Plants under Ontario’s Occupational Health and Safety Act. Effective September 1, 2023, additional requirements will take effect.

    The Regulation has and will create many new safety obligations for employers in Ontario’s mining industry, and will increase the requirements for safety policies and procedures in mining operations across Ontario. You can find the newest version of the Regulation with all of the changes here.

    Summary of Key Changes Effective July 1, 2023

    • Flammable Hazards: Oil, grease and flammable liquids must be stored or transported in metal containers, receptacles or portable containers or safety cans that are government-approved when being used underground.
    • Ladderways: Where a worker could fall more than three meters, a ladderway should be fixed in place with a safety cage and a protective device to prevent the worker from falling. Furthermore, if a ladderway is seven meters or longer and at an angle step greater than 70 degrees, the ladderway needs to have platforms at intervals not greater than seven meters.
    • Mine Design: Mine designs must now be prepared under the direction of an engineer, instead of a “competent person.” Mine designs will also be required to describe both the geology and geotechnical aspects of the mine.
    • Power Sources: Independently powered conveyances used instead of a ladderway must have a source of power that is independent of the main power source of the mine, and must be capable of safely transferring persons through the shaft to a location they can use to safely exit the shaft. These must be readily available for use.

    Continue Reading Digging into the Amended Ontario Occupational Health and Safety Act Mining Regulation

    Ontario’s provincially-regulated employers will have to determine whether they must provide naloxone kits at their workplace by June 1, 2023.

    Naloxone is a drug that can temporarily reverse the effects of an opioid overdose, and naloxone kits are designed to combat opioid addiction and overdose.

    Last year, Ontario’s Bill 88, Working for Workers Act, 2022…

    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…

    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…

    Across Canada, provincial governments have begun lifting most of the COVID-19 related public health measures and employers are now grappling with what safety protocols to maintain for their workplaces given the recent shift towards a pre-pandemic “normal.”

    In this In Focus video, our Labour and Employment lawyers explore considerations for employers before scrapping the restrictions…