Human Rights & Accommodation

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

As we wrap up 2024 and look forward to 2025, here are 10 key developments Canadian employers should track:

1. Changes to Termination Notice Periods for Federal Employees

In February 2024, amendments to section 230 of the Canada Labour Code came into effect requiring federal employers to provide their employees with a graduated notice of termination based on the length of an employee’s continuous employment. Prior to this, 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 said employer.

The amendments also require employers to provide a written statement of benefits to employees who have been terminated. Prior to these amendments, this was only required for group terminations, but now will also apply to individual terminations. These statements must outline an employee’s right to vacation benefits, wages, severance pay and any other benefits and pay arising. A federal employer’s obligation to pay severance pay under section 235 of the Code, however, remains unchanged. 

Please see our full blog on the updated amendments and notice lengths, “Reminder for Federal Employers: Changes to Termination Notice Period in Effect NOW.”

2. New Obligations for Ontario Employers Under Bill 149 – Working for Workers Four Act

On March 21, 2024, Bill 149 – Working for Workers Four Act received Royal Assent as part of a series of legislative initiatives that have been introduced under the “Working for Workers” banner since 2021. Each piece of legislation in this series seeks to address various contemporary issues within Ontario workplaces. Bill 149 introduces significant changes to Ontario’s employment law, including:

  • Job Postings: Employers who publicly advertise job postings are now required to disclose either the expected compensation or a range of expected compensation. The range of expected compensation shall be subject to conditions, limitations, restrictions or requirements as may be prescribed. Further, employers will also be required to disclose in job postings whether they used artificial intelligence in the hiring process (i.e., if AI was used to screen, assess or select applicants for the position). These new requirements will come into force on January 1, 2026.
  • Tips and Tip Policies: If an employer has a policy in respect of tip pooling, they are required to both post and keep posted a copy of their policy in a conspicuous place in their establishment where the policy is likely to come to the attention of employees. Further, employers are required to retain copies of any written tip pooling or sharing policy for a period of three years after it is no longer in effect.

The Act brings about a number of additional changes that will be relevant for employers, which are summarized in our blog post, “* UPDATE * Ontario Passes Bill 149, Working for Workers Four Act, 2024, Imposing Pay Transparency Requirements Among Other Things.”

3. Timely Judicial Reminder re Termination Provisions and Fixed-Term Contracts

The Ontario Superior Court of Justice in Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029, delivered a decision that will impact the way employment agreements are drafted going forward. The Plaintiff was employed by the Defendant Township on a fixed-term contract. However, with 101 weeks remaining in her contract term, the Township terminated her employment without cause. Following this, the Plaintiff sued the Township for wrongful dismissal, arguing that the termination clause in their contract was unenforceable and that they were therefore entitled to reasonable notice of termination. Ultimately, the Court found the termination provisions unenforceable as the contract did not comply with the Employment Standards Act, 2000, for three reasons.Continue Reading Top 10 Canadian Labour & Employment Law Developments of 2024

We are pleased to summarize a recent Canadian HR Reporter article, “New deadline for AODA compliance looms on horizon,” with insight from Dave Bushuev.

Organizations with 20 or more employees in Ontario as well as designated public sector organizations must confirm their ongoing compliance with the accessibility requirements under the Accessibility for Ontarians with Disabilities…

Special thanks to our former articling student, Eloise Somera.

In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines“), the British Columbia Court of Appeal upheld the BC Human Rights Tribunal’s decision that a change in employment terms is not a necessary precondition to a finding of prima facie discrimination based on family status.

The Relevant Legal Tests

In Moore v. British Columbia (Minister of Education), 2012 SCC 61 (“Moore“), the Supreme Court of Canada outlined the test for establishing discrimination in the workplace:

  • The employee must first demonstrate prima facie discrimination by proving that:
    • they have a characteristic protected under human rights legislation;
    • they have experienced an adverse impact; and
    • the protected characteristic was a factor in the adverse impact.
  • If an employee establishes prima facie discrimination, the burden then shifts to the employer to justify its requirement as a bona fide occupational requirement that cannot be accommodated without undue hardship.

In conjunction with this general test, the British Columbia Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”) elaborated on what is required to prove prima facie discrimination based on family status. The Campbell River test requires an employee to prove:

  • a change in a term or condition of employment by the employer; and
  • that the change resulted in a serious interference with a substantial parental or other family duty or obligation.

The Campbell River test was reaffirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Suen”).

Factual BackgroundContinue Reading A Change in Employment Terms is No Longer Required to Constitute Prima Facie Family Status Discrimination – The British Columbia Court of Appeal Clarifies

With special thanks to our presenters Benjamin Ho (United States),  Matías Herrero (Argentina), Leticia Ribeiro (Trench Rossi Watanabe, Sao Paulo*), Maria Cecilia Reyes (Colombia) and Liliana Hernandez-Salgado (Mexico).

In this session, US-based multinational employers with business operations in the Americas region hear directly from Benjamin Ho and local practitioners on the major developments they…

Special thanks to co-authors Julia Webster and Jing Xu, and contributor Oscar Ramirez (articling student in our Toronto office).

This article provides an overview of the global rise in human and labor rights legislation linked to trade measures and how this impacts the consumer goods and retail industry.

We examine:

  • Canada’s efforts to
…

Special thanks to Eloise Somera (articling student in our Toronto office) for co-authoring.

Before the end of 2023, and every three years thereafter, all businesses or non-profits with twenty or more employees in Ontario must confirm their ongoing compliance with the accessibility requirements under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) and submit an accessibility compliance report to the Ontario Government. The same reporting requirement applies to designated public sector organizations, but they must submit an accessibility compliance report every two years.

Failure to submit an accessibility compliance report can lead to significant penalties and fines by the Ontario Ministry of Labour (the Ministry).

Required Self-Assessment

AODA’s accessibility compliance report is intended to be an organization’s self-assessment of its compliance with Ontario’s accessibility requirements, including a confirmation that the organization is complying with the Accessibility Standards. The types of questions a business must answer will depend on what organization category it falls into (i.e., business or non-profit, designated public sector, or Ontario public service/Ontario Legislative Assembly). This is because different businesses are subject to different accessibility requirements under AODA. (Electronic copies of the applicable form can be downloaded on the government’s website here.)

As a business, non-profit, or a designated public sector organization, the organization can expect to answer questions regarding whether it:

  • employs any person with disabilities for whom it has provided individualized workplace emergency response information;
  • provides appropriate training on AODA, which includes the Integrated Accessibility Standards Regulation;
  • provides appropriate training on Ontario’s Human Rights Code as it pertains to people with disabilities; and
  • has implemented a multi-year accessibility plan, and if yes, whether that plan is posted on the organization’s website, and whether it is updated at least once every five (5) years.

Continue Reading Workplace Accessibility Reports Under Ontario’s AODA Due By December 31, 2023

Join us for a four-part webinar series as our US moderators welcome colleagues from around the globe to share the latest labor and employment law updates and trends. US-based multinational employers with business operations in Asia Pacific, Europe, the Middle East and Africa, and the Americas regions will hear directly from local practitioners on the…

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And we thought 2020 was a doozy! In terms of continuing challenges, unprecedented questions and shifting legal landscapes, 2021 delivered.

Between maintaining business continuity and keeping your workforce safe, we know there’s been little time to track the rapidly changing labour, employment, and human rights law landscape in Canada.

This two-part webinar series is designed…

On May 21, 2021, we reported in a blog post that the British Columbia government passed Bill 13, Employment Standards Amendment Act (No. 2), 2021, which amends the Employment Standards Regulation to add a permanent and paid sick leave program. The Government did not provide details on the leave at that time. However,…