On June 4, 2021, the Ontario Government announced that the “COVID-19 Period” and the temporary measures introduced by O. Reg. 228/20: Infectious Disease Emergency Leave (the “Regulation”) under the Employment Standards Act, 2000 (the “ESA”) have been extended until September 25, 2021.

The Regulation, which was first introduced in May 2020,

On May 20, 2021, the government of British Columbia passed Bill 13, Employment Standards Amendment Act (No. 2), 2021, which amends the Employment Standards Act, 1996 to provide employees with three days of paid sick leave for reasons related to COVID-19, as well as a permanent paid sick leave for any illness or injury.

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

2020 has posed unprecedented challenges for Canadian Employers. We know that in addition to keeping your employees safe and maintaining business continuity, it’s a challenge to keep track of all the changes to the employment law landscape in Canada.

These two, 60 minute virtual sessions are designed to help you stay abreast of what changed

The Ontario Government amended a previous regulation to extend deemed infectious disease emergency leave (“IDEL”) under the Employment Standards Act, 2000 (the “ESA”) until January 2, 2021.

This is an update to our previous blog post, Ontario Files New ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals, where, on May 29, 2020, the Ontario Government filed a new regulation changing the rules regarding employee eligibility for IDEL, temporary layoffs and constructive dismissals under the ESA. The regulation retroactively “deems” non-union employees who were not performing their duties, working reduced hours, or receiving reduced wages (at the employer’s behest) to be on IDEL.

Previously, the regulation dealt with the time period beginning March 1, 2020 and ending “six weeks after the declared emergency ends.” The Government has called this the “COVID-19 Period.” However, the Ontario Government has now extended this “COVID-19 Period” to January 2, 2021.


Continue Reading Ontario Amends ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals by Extending COVID-19 Period

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

There is a presumption that an employee is entitled to common law reasonable notice upon termination of employment without cause. Employers may rebut this presumption through an enforceable termination clause that, at the very least, provides Employment Standards Act, 2000 (“ESA”) minimums, and displaces an employee’s right to common law reasonable notice.

In the past year, the Ontario Court of Appeal made it clear that it will find as unenforceable a termination clause where even the slightest imprecision could result in an unlawful contract. This trend started in Andros v. Colliers Macaulay Nicolls Inc., where the Court narrowly interpreted a failsafe clause as applying only to the first part of a termination clause but not the second. In Rossman v. Canadian Solar Inc., the same Court concluded that savings provisions, such as a failsafe provision, cannot save employers who attempt to contract out of the minimum standards prescribed by employment standards legislation. And most recently, in Waksdale v. Swegon North America Inc., the Court struck down a valid “without cause” termination sub-clause because the “for cause” termination sub-clause was unenforceable. In short, the Court concluded that where one of the sub-clauses is unenforceable, the entire termination clause must fall and it will not be saved by a severability clause.


Continue Reading Another Termination Clause Bites the Dust

If you are an Ontario employer who has implemented, or is considering implementing, temporary layoffs, wage reductions, or hours of work reductions, the Ontario Government’s recent changes will matter to you.

On May 29, 2020, the Ontario Government filed a new regulation changing the rules regarding employee eligibility for infectious disease emergency leave, temporary layoffs and constructive dismissals under the Employment Standards Act, 2000 (the “ESA”), with retroactive effect.

Below is a summary of the most important aspects of this new regulation and why the changes will matter to your workplace and employees.

How Long Do These Changes Last?

The regulation applies retroactively, dealing primarily with the time period beginning March 1, 2020 and ending six weeks after the declared emergency ends. The Government has called this the “COVID-19 Period”. The Government recently extended the current declared emergency until June 30, meaning the regulation will be operative until at least August 11, 2020. A further extension to the declared emergency is possible, and this would automatically extend the life of the new regulation.


Continue Reading Ontario Files New ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals

Earlier this week, the Ontario government announced its intention to introduce legislation to amend the Employment Standards Act2000 (“ESA”), to provide job-protected leave to all employees impacted by COVID-19.
Continue Reading Ontario Passes Bill 186 Introducing New Job-Protected Leaves Amid COVID-19 Outbreak