Employment Standards

Subscribe to Employment Standards via RSS

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

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
…

Special thanks to our articling student Mario Lofranco for contributing to this update.

In a previous blog post, we discussed the proposed changes that Bill 149 would bring to several employment statutes, building on the Working for Workers Acts, 2021, 2022, and 2023.

Bill 149 received royal assent on March…

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

    Special thanks to presenters Andrew Boyd, Andrew Morreale and Haran Viswanathan.

    Tune in to our latest quick chat where we outline what employers need to know about Canada’s augmented mandatory reporting rules for tax in certain transactions. This is tailored for tax professionals, lawyers, compliance officers, General Counsel, and Canadian business leaders involved…

    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 Johnston, 2023 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

    We are proud to share that Baker McKenzie was recognized as one of Greater Toronto’s Top Employers (2024). Our office was selected for its culture of inclusion, friendship and support for employee development.

    Inclusion is at our core, as Ajanthana shared:

    “As a global law firm, we work very closely with our colleagues around the

    …

    Special thanks to our articling student Madison Bruno for contributing to this update.

    On November 14, the Ontario Government introduced Bill 149, Working for Workers Four Act, 2023. If passed as expected, Bill 149 would significantly change several employment statutes, building on the Working for Workers Acts, 2021, 2022, and 2023. Key changes include: new requirements for Ontario employers to disclose pay information in job postings; a new obligation to disclose whether artificial intelligence was used during the hiring process; and it would prohibit using Canadian work experience as a job requirement.Continue Reading Ontario Poised to Pass Major Changes to Job Posting Requirements

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

    In a previous post, we discussed the legislative trend for greater pay transparency across Canada, including in British Columbia with the recent adoption of the Pay Transparency Act.

    The British Columbia government has since released guidance on the application of the Act. This clarifies the requirement to include salary or wage information in all publicly advertised job postings, effective November 1, 2023.

    Required Wage and Salary Information in Job Postings

    To comply with the Act, employers (and third parties posting on behalf of an employer) must include the expected wage or salary or expected wage or salary range in job postings. For example:

    • $20 per hour; or
    • $40,000 to $60,000 per year.

    The wage or salary range cannot be unspecified or open-ended. For example, stating that a job pays “$20-$30 per hour” would comply with the Act, while “$20 per hour and up” would not.

    The Province leaves it to the employer’s discretion to decide how extensive the advertised wage or salary range may be. Further, employers are not required to include bonus pay, overtime pay, tips, or benefits in their job postings. The above requirements do not prevent an applicant from requesting a higher wage or salary than the amount advertised. Similarly, employers are free to offer an applicant a higher wage or salary than the one included in the job posting.Continue Reading Update: New Guidance Details Requirements Under the British Columbia Pay Transparency Act