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Last week, the Ontario government passed its latest budget bill, Bill 229: Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020 (“Bill 229”). Bill 229 implements initiatives contained in Ontario’s 2020 budget through amendments to existing statutes.

Amendments to key employment statutes include:

Protecting a Sustainable Public Sector for Future Generations Act, 2019:

Bill 229 amended Bill 124: The Protecting a Sustainable Public Sector for Future Generations Act, 2019 (“Bill 124”) to clarify the moderation period for a group of non-union employees who are certified by a trade union after June 5, 2019, or to a group of unionized employees who decertify. In short, where employees have already commenced their moderation period before the change in status, they will get credit for the time spent in their moderation period before their change in status. If they have not commenced their moderation period before the change in status, then the 3-year moderation period will apply under their new status.

Further, the Management Board of Cabinet can now issue directives requiring employers to provide information related to collective bargaining compensation for compliance purposes. Under this provision, the Management Board of Cabinet has the authority to withhold funds from the employer or employers’ organization if a directive is not complied with, and contains measures that might result in the forfeiture of any withheld funds.

Employer Health Tax Act:

Back in March, the government temporarily increased the Employer Health Tax (“EHT”) exemption for 2020 from $490,000 to $1 million. Bill 229 amended the legislation to make this permanent. The EHT exemption will be adjusted according to inflation in 2028, following which it will be adjusted for inflation every 5 years. The Ontario government also amended the Act to increase the installment threshold from $600,000 to 1.2 million for the 2021 tax year. Under this new installment threshold, all employers would only be required to remit monthly installments when their payroll reaches $1.2 million.

Pension Benefits Act:

In 2010, the government amended the Pension Benefits Act to include a target benefits framework, among other things. These provisions were never proclaimed into force and were subject to automatic repeal under Ontario’s Legislation Act after 10 years, on December 31, 2020. Bill 229 re-enacted the target benefits provisions, but these provisions will come into force on a future date to be proclaimed by the Lieutenant Governor of Ontario.

Other noteworthy provisions that have now been automatically repealed under the Legislation Act include provisions relating to phased retirement and the requirement to provide advance notice for plan amendments.

Many thanks to Dorna Zaboli for her assistance in drafting this article.

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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 in 2020 and be prepared for what’s on the horizon in 2021.

We will review the key developments impacting Canadian employers and provide practical tips for navigating the new normal. Among other topics, you will hear about:

    • COVID-specific laws applicable to Canadian employers
    • Navigating leaves of absence and the duty to accommodate during the pandemic
    • Revisiting substantive equality & compensation for work performed
    • Remote working best practices
    • Workplace violence and harassment
    • Independent contractor update
    • Employment agreement enforceability
    • Mitigating business disruption caused by Canada’s border closures and quarantine requirements
    • Strategies relating to union organizing during the time of COVID and labour update
    • Trade and labour adoption of international labour standards

Click here for more information and to register.

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Special thanks to Sanjay Khanna for this piece.

Amidst the planetary emergency of climate change, the COVID-19 pandemic is testing modern civilization’s preparedness for shocks across spheres of finance, economics and technology; global, national and regional governance; global and population health; social cohesion and food security. While the vast majority of businesses around the world are today in the throes of the immediate impacts of the pandemic, it is important to state that the consequences of this abrupt global change will reverberate beyond the coming decade, much like the repercussions of the 2007-10 financial crisis.

Continue Reading Unprecedented: Converging Crises | Foresight View

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The Supreme Court of Canada’s recent decision in Fraser v. Canada (Attorney General), 2020 SCC 28 (“Fraser“) raises fundamental questions about how allegations of discrimination under human rights legislation and the Canadian Charter of Rights and Freedoms (“Charter“) will be adjudicated in the future. At a minimum, employers should carefully review distinctions drawn under workplace policies, practices, and benefits plans—particularly distinctions between full-time employees, part-time employees, and employees on a leave of absence—to ensure those distinctions do not disproportionally impact women with children. Continue Reading Supreme Court Revisits Workplace Discrimination in the Context of Pension Service Buy-Back

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We thank Glenn Gibson, John Pirie & Michael Nowina for this post.

In an unreported judgment Pallotta v. Cengarle, Court file CV-16-56337 released on February 27, 2020, Faieta J. found real estate lawyer Licio Cengarle vicariously liable for his clerk’s mortgage fraud scheme as well as for breach of trust. This case is a cautionary tale for professionals and employers about the need for internal controls. Continue Reading Ignorance of Fraud is No Defence: Employer Vicariously Liable for Rogue Employee

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At common law, employers have a right to terminate an employment relationship, subject to reasonable notice of termination. When an employer breaches this implied duty, employees are entitled damages for wrongful dismissal, which presumptively include damages for lost incentive compensation unless an employer unequivocally ousts that right in an employment agreement or incentive plan. In Matthews v. Ocean Nutrition Canada Limited, the Supreme Court of Canada confirmed that absent “absolutely clear and unambiguous” language in the employment agreement or the incentive plan restricting such entitlement, incentive compensation is considered part of the damages owed in lieu of common law reasonable notice. Continue Reading SCC Reminds Employers of the Costly Implications of Imprecise Language in Incentive Compensation Plans

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Earlier this summer, several Ontario municipalities established bylaws requiring businesses to ensure masks or face coverings are worn by the public in enclosed public spaces (see our earlier article here). On October 3, 2020, the Ontario government amended the Rules for Areas in Stage 3, O Reg 364/20 (the “amended regulation”), establishing similar requirements for most Ontario businesses, summarized below.

Who Must Wear Masks or Face Coverings?

Generally speaking, businesses and organizations must ensure that anyone located in an indoor area within their premises, or within a vehicle that is operating as part of the business or organization, wears a mask that covers their mouth, nose, and chin.

Continue Reading Ontario Amends Mask and Face Covering Requirements for Businesses

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The Ontario Government now requires most Ontario businesses and organizations to implement a workplace screening tool that requires staff members and essential visitors to complete a medical questionnaire before entering the workplace each day. This new requirement is established under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and became effective on September 26, 2020. Continue Reading New COVID-19 Workplace Screening Requirements for Ontario Businesses

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After almost six months of school closures across Ontario due to the COVID-19 pandemic, school is now back in session for most students. The provincial government’s education model includes a voluntary back-to-school regime that provides parents and students with the option to engage in online learning from home or to have children physically attend at school. With recent cases of COVID-19 on the rise this fall, outlined below is a summary of what employers should be aware of regarding their obligations to accommodate employees with children that are not attending in-person school or childcare.[1] Continue Reading Back to School: An Employer’s Obligations to its Parental Employees

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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