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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 articling student Ravneet Minhas for contributing to this update.

    Federal employers should be aware of recent amendments to the Canada Labour Code, which increased the minimum termination notice period for federally regulated private sector employees.[1] The changes came into force February 1, 2024 and provide employees who have completed at least three years of continuous service with a longer notice period if terminated without cause.

    Previously, employers had to provide a minimum of two weeks’ notice of termination or pay in lieu of notice to an employee who had completed at least three months of continuous employment with the employer.Continue Reading Reminder for Federal Employers: Changes to Termination Notice Period in Effect NOW

    To wrap up 2023, we have highlighted the key developments in Canadian labour and employment law, with a focus on Ontario.

    1. Ontario’s Working for Workers Acts

    In 2023, the Ontario government continued building on previous legislation by passing Bill 79, Working for Workers Act, 2023, and introducing Bill 149, Working for Workers Four Act, 2023. These two bills are the latest in a series of legislative changes expanding employee rights which started with Bill 27 and Bill 88, passed in 2021 and 2022, respectively.

    Bill 79, Working for Workers Act, 2023, received royal assent on October 26, 2023. Some of its key changes include:

    • The inclusion of remote employees in the head count for mass termination thresholds under the Employment Standards Act, 2000 (“ESA“);
    • An increase from $1.5 million to $2 million in the maximum fine that may be imposed on a corporation under Ontario’s Occupational Health and Safety Act; and
    • An expansion of eligibility criteria for reservist leave to include employees in treatment, recovery or rehabilitation for an illness or injury resulting from participation in certain reservist operations or activities.

    Please consult our previous blog post for more detailed information on this Bill.

    If passed, Bill 149, Working for Workers Four Act, 2023, which carried second reading on November 23, 2023 and was referred to a standing committee on social policy, would also introduce significant changes to a number of Ontario employment-related statutes. Among them, the Bill would require employers to disclose pay information in job postings (i.e., expected compensation or a range of expected compensation), and whether they use artificial intelligence in the hiring process. Additionally, and in an effort to eliminate discriminatory requirements towards immigrants, employers would also be prohibited from requiring Canadian experience. For more information on these changes, please read our previous blog post on the topic. 

    2. Legislative Push for Pay Transparency in Canada

    The past year has also seen a growing pay transparency trend, both in Canada and abroad, intended to help bridge the pay gap for historically-disadvantaged groups. Among the latest developments in this area, British Columbia passed the Pay Transparency Act, creating new obligations for employers to disclose certain pay information in publicly-advertised job postings, and to prepare annual pay transparency reports if they qualify as a “reporting employer” under the legislation. This new law also prohibits reprisal against employees for discussing or inquiring about their pay or for asking the employer to comply with its statutory pay transparency obligations.

    Other provinces, including Newfoundland and Labrador, and Prince Edward Island have passed similar legislation. We covered this pay transparency trend in greater detail in two blog posts, accessible here and here. Ontario is also expected to amend the ESA to require the disclosure of certain pay information in job postings as part of Bill 179, as discussed above.  

    3. New Tort of Harassment

    Alberta recently became the first Canadian province to recognize the tort of harassment. The development is significant because it departs from Ontario and British Columbia, which have declined to recognize the tort.

    In Alberta Health Services v Johnston2023 ABKB 209, the Alberta Court of King’s Bench recognized the tort of harassment because the harm in question could not be adequately addressed by any existing torts.  In this case, Alberta Health Services (“AHS”) and two of its senior employees sued Mr. Johnston for defamation, invasion of privacy, assault and harassment. Mr. Johnston, an online talk show host and mayoral candidate, used his talk show to frequently criticize the AHS’ response to the COVID-19 pandemic. He referred to the AHS as Nazis and suggested that they should be subject to violent attacks. He targeted one AHS employee, Ms. Nunn, by sharing photos from her social media accounts, attacking her family and alleging she was an alcoholic.

    The Court awarded Ms. Nunn, among other things, $100,000 in general damages for harassment.

    In recognizing the tort, Justice Feasby canvassed existing case law across the country and found that no existing torts squarely addressed the harms caused by the harassment in question. Justice Feasby determined the tort of harassment exists where a defendant has:

    1. Engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
    2. That he/she knew or ought to have known was unwelcome;
    3. Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for his/her safety or the safety of his/her loved ones, or could foreseeably cause emotional distress; and
    4. Caused harm.

    Besides the tort of harassment, other legal avenues that victims of harassment-related claims may pursue include human rights claims, occupational health and safety claims, a complaint with the police and, in Nova Scotia, an application for a cyber-protection order.

    Employers should be aware of the legal remedies that may be available to victims of bullying and harassment, including the newly recognized tort of harassment in Alberta. More information can be found on our blog post here.Continue Reading Top Canadian Labour & Employment Law Developments of 2023

    Cyberbullying is becoming an increasingly pertinent issue in the workplace. With the growing prevalence of remote work and employee social media groups, employers face greater liability for online communications that occur outside of the office.

    While the law is sparse on the topic of cyberbullying, victims may have several legal avenues to address this issue.

    Special thanks to our articling student Ravneet Minhas for contributing to this update.

    The Alberta Court of King’s Bench recently became the first Canadian province to recognize the tort of harassment. This development is notable in the face of recent case law out of both British Columbia and Ontario that has declined to recognize a general tort of harassment.  

    For example, the Ontario Court of Appeal in Merrifield v Canada (Attorney General), 2019 ONCA 205 overturned the finding of a trial judge who found that the tort of harassment existed in Ontario. The Court’s analysis explained that significant changes to the law should be left to the legislature, and the role of the courts is only to make incremental changes to the law. Similarly, British Columbia courts have also resisted recognizing the tort of harassment (Stein v Waddell2020 BCSC 253Anderson v Double M Construction Ltd2021 BCSC 1473). 

    The recognition of a general tort of harassment by the Alberta Court of King’s Bench, coupled with case law post-dating Merrifield[1], may lead other Canadian courts to rethink their position on this issue. As discussed further below, Justice Feasby in Alberta Health Services v Johnston2023 ABKB 209, recognized the tort on the basis that the harm in question could not be adequately addressed by any existing torts (Nevsun Resources Ltd v Araya2020 SCC 5 at para 123). As such, where the facts of a case demand the creation of a novel legal remedy, other Canadian courts may recognize a similar tort of harassment.

    Alberta Establishes a Tort of Harassment

    In Alberta Health Services v Johnston, Alberta Health Services (AHS) and two of its senior employees sued Mr. Johnston for defamation, invasion of privacy, assault and harassment. Mr. Johnston, an online talk show host and mayoral candidate, used his talk show to frequently criticize the AHS’s response to the COVID-19 pandemic. He repeatedly alleged an intention to prosecute AHS employees for “heinous crimes”, and stated that his goal was to “bankrupt AHS members”. He further referred to the AHS as Nazis and suggested that they should be subject to violent attacks. He particularly targeted one AHS employee, Ms. Nunn, by sharing photos from her social media accounts, attacking her family and alleging that she was an alcoholic. 

    The Court awarded Ms. Nunn $300,000 in general damages for defamation, $100,000 in general damages for harassment, and $250,000 in aggravated damages. While the Court held that AHS was not eligible for damages, both Ms. Nunn and AHS were granted permanent injunctions restraining Mr. Johnston. 

    In recognizing the tort of harassment, Justice Feasby canvassed the existing case law across the country and found that no existing torts squarely addressed the harms caused by the harassment. He found that while defamation and assault share some elements with harassment, they fall short of clearly addressing the type of harm suffered by Ms. Nunn. Similarly, the new privacy torts only address harassment where there is a reasonable expectation of privacy. 

    Justice Feasby also noted that the recognition of the tort was merely a reflection of what Alberta courts have already been doing in the context of granting restraining orders.

    In his decision, Justice Feasby defined the tort of harassment to exist where a defendant has: 

    1. Engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
    2. That he knew or ought to have known was unwelcome;
    3. Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and
    4. Caused harm.

    Continue Reading An Emerging Tort of Harassment in Canada?

    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 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

    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