In Render v. ThyssenKrupp Elevator (Canada) Limited Group, the Ontario Court of Appeal redefined wilful misconduct under the Employment Standards Act and confirmed the modern day approach to assessing sexual harassment in the workplace.

The Decision

Mark Render was terminated for cause after slapping a female co-worker on her behind. The trial judge found that the incident caused a breakdown in the employment relationship that justified his dismissal for cause and the denial of all common law and statutory entitlements. Render appealed.

The Ontario Court of Appeal confirmed that the employer had just cause to terminate Render’s employment. But it also found that his conduct was not wilful misconduct. Thus, the Court found that Render was entitled to his minimum entitlements under the Employment Standards Act, but not common law notice. Since the Court had no evidence that ThyssenKrupp’s payroll exceeded $2.5M, Render was only entitled to termination pay and not severance pay.

In reviewing the statutory term of wilful misconduct, the Court reiterated the well-known principle that proving wilful misconduct is more onerous than just cause at common law. Although this was always a well-known concept, the Court of Appeal introduced what looks like a new element that employers need to establish—the misconduct must be preplanned and not just intentional. Here, the Court found that Render’s conduct was performed in the heat of the moment, in reaction to an insult. Thus, while ThyssenKrupp had just cause to terminate Render’s employment, disentitling him to any common law notice, it did not establish that there was wilful misconduct.

Key Points

Employers now have the added burden of proving that an employee’s misconduct was both intentional and preplanned to meet the threshold of wilful misconduct.

The Court’s decision also confirms the modern view that an employer should not look at sexual harassment misconduct on a spectrum to determine whether it has cause to terminate an offender’s employment. The trial court determined that whether an act is sexual harassment, sexual assault, or common assault, the purpose is the same in that it is to assert dominance over an individual and demean or embarrass them in front of others. The Court of Appeal upheld this aspect of the trial court’s decision, showing the lack of tolerance courts will have for misconduct of this nature.

If you have any questions, please contact a member of our team.

On April 11, 2022 Bill 88, Working for Workers Act, 2022 received royal assent, introducing significant changes to a number of employment-related statutes, and introducing the Digital Platform Workers Rights Act, 2022.

The most important changes introduced by Bill 88 include:

  • New employment standards exemptions: Certain business consultants and information technology consultants are now exempt from the Employment Standards Act (ESA). This includes hours of work provisions, overtime provisions, and termination pay and severance obligations. This amendment comes into force on January 1, 2023.
  • Requirement to develop an electronic monitoring policy: Employers with 25 or more employees as of January 1 of any year are required to develop and implement a written electronic monitoring policy by October 11, 2022, and make copies of the policy available to all of their employees. The policy must include whether the employer electronically monitors its employees and, if so, (i) a description of how and in what circumstances the employer may electronically monitor employees, and (ii) the purpose for which information obtained through electronic monitoring may be used by the employer. The policy must also contain the date it was prepared and any changes made to it, and any other information as may be prescribed by regulation.
  • New Digital Platform Workers Rights Act, 2022: Bill 88 enacts the Digital Platform Workers Rights Act, 2022 which establishes rights for workers who perform digital platform work, defined as the provision for payment ride share, delivery, courier or other prescribed service through a digital platform. The new Act provides for the following worker rights and obligations, among others:
    • Right to information: Digital platform operators must provide workers with information on how pay is calculated and whether tips and gratuities are collected, pay periods, performance ratings, work assignments, etc.
    • Right to recurrent pay period and pay day, minimum wage for each work assignment performed by a worker, and amounts earned and tips and other gratuities.
    • Right to notice of removal: Workers must be advised of the reasons for being removed from a platform, and be given two weeks’ written notice if access is removed for more than 24 hours.
    • Right to be free from reprisal and to resolve work-related disputes with platform operators in Ontario.
    • The Act also sets out record-keeping obligations for platform operators, director liability provisions, and detailed complaints and enforcement provisions.
  • Health and safety: the Occupational Health and Safety Act (OHSA) is amended to (i) require employers to provide naloxone kits when an employer becomes aware of a risk for a worker of having an opioid overdose at the workplace; (ii) increase maximum fines under the OHSA to $1,500,000 for directors and officers, and $500,000 for other individuals; and (iii) increase the limitation period for prosecutions to two years. Amendments to the OHSA enforcement provisions come into force on July 1, 2022, while the new requirements related to the provision of naloxone kits will come into force at a future day to be named by proclamation.
  • Expanded reservist leave: The ESA is amended to provide employees with additional time off to participate in Canadian Armed Forces military skills training.
  • New timelines for applications to certain regulated professions: Amendments to the Fair Access to Regulation Professions and Compulsory Trades Act, 2006 establish new timelines to reduce delays for responding to applications for registration by a regulated profession in Ontario from applicants already registered with an equivalent out-of-province body.

Key Takeaways

Bill 88 has sweeping implications for employers. Employers with more than 25 employees should review their electronic monitoring practices and start developing a written policy in accordance with the new ESA requirements. Business qualifying as digital platform operators under the Digital Platform Workers Rights Act should review their payment, record-keeping, and other practices to ensure compliance with the obligations set under the new Act, which will come into force on a date yet to be determined. If you have any questions or need assistance with any of the above, please contact someone from our team.


Many thanks to Juliette Mestre for her assistance with this article.

Join us for a four-part webinar series as our moderators welcome colleagues from around the globe to share the latest labor and employment law updates and trends. Multinational employers with business operations in Europethe Americas, the Middle East and Africa, and Asia Pacific regions will hear directly from local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

In each 60-minute discussion, we will explore:

  • The impact of the current social and political climate on multinational employers
  • New significant legislative developments
  • Inclusion and diversity (I&D) advancements and trends
  • Best practices for a flexible workforce, addressing remote and hybrid work

We look forward to welcoming you at the sessions relevant to your business — no passport necessary!

To view the complete roster of presenters for each regional program, click here.

EUROPE
France, Germany, the Netherlands, Spain and the UK
Wednesday, June 1, 2022
9 am PT/ 12 pm ET
Click here to register.

THE AMERICAS
Argentina, Brazil, Canada, Colombia and Mexico
Wednesday, June 8, 2022
9 am PT/ 12 pm ET
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THE MIDDLE EAST AND AFRICA
Saudi Arabia, South Africa, Turkey and the UAE
Wednesday, June 15, 2022
9 am PT/ 12 pm ET
Click here to register.

ASIA PACIFIC
Australia, China, Japan, the Philippines and Singapore
Wednesday, June 22, 2022
3 pm PT/ 6 pm ET
Click here to register.

To view these programs in a different time zone, click here.
Please “register” for a copy of the recording and materials if you are unable to attend live.


CLE Accreditation

Each program is approved for 1.0 general California CLE credit, 1.0 general Illinois CLE credit, 1.0 areas of professional practice New York CLE credit, and 1.0 general Texas CLE credit. Participants requesting CLE for other states will receive Uniform CLE Certificates. Baker & McKenzie LLP is a California and Illinois CLE approved provider. Baker & McKenzie LLP has been certified by the New York State CLE Board as an accredited provider in the state of New York. This program is appropriate for both experienced and newly admitted New York attorneys. Baker & McKenzie LLP is an accredited sponsor, approved by the State Bar of Texas, Committee on MCLE.

Each 1-hour activity can be applied towards the 9 Substantive Hours of Continuing Professional Development (CPD) required by the Law Society of Ontario.

**While CLE credit may be pre-approved in certain jurisdictions, final CLE accreditation approval is anticipated, but not guaranteed.

Many thanks to our colleagues in New York, Paul Evans, and in London, Yindi Gesinde, moderator, and Monica Kurnatowska, for co-presenting.

Moving the Dial on Inclusion & Diversity in Your Organization

Creating a diverse and inclusive workforce remains a business imperative for global employers. Despite stakeholder and social pressure to accelerate progress, many companies have been unable to move the dial towards greater equality and diverse representation in the workplace. Stubborn I&D challenges are showing no sign of disappearing of their own accord.

A campaign to improve diversity must be fought on many fronts. Join our panel of Inclusion & Diversity experts on May 11th as they discuss the findings of our recent Mind the Gap Survey and the steps diversity and HR leaders are taking to accelerate I&D progress and the challenges they are encountering.

Guest Speaker: Dr. Stefanie Johnson

Best-selling author Dr. Stefanie Johnson studies the intersection of leadership and diversity, focusing on (1) how unconscious bias affects the evaluation of leaders and (2) strategies that leaders can use to mitigate bias. Dr. Johnson works with the best companies in the world to create more inclusive leaders, including presenting her work at the White House for a summit on diversity in corporate America on National Equal Pay Day.

Her latest Wall Street Journal best-selling book, Inclusify: Harnessing the Power of Uniqueness and Belonging to Build Innovative Teams, shares the surprising ways the leaders undermine inclusion and provides actionable ways that leaders can pivot to build more inclusive teams.

Wednesday, May 11 | 90 minutes
8:00 am PST (Los Angeles) / 10:00 am CST (Chicago) /
4:00 pm GMT (London) / 5:00 pm CET (Frankfurt)

Click here to register.


Continuing Education Credit | Approved for 1.5 elimination of bias California CLE credit, 1.5 diversity and inclusion Illinois CLE credit, 1.5 areas of diversity, inclusion and elimination of bias New York CLE credit. Pending approval for 1.5 ethics Texas CLE credit. Participants requesting CLE for other states will receive Uniform CLE Certificates. Baker & McKenzie LLP is a California and Illinois CLE approved provider. Baker & McKenzie LLP has been certified by the New York State CLE Board as an accredited provider in the state of New York. This program is appropriate for experienced New York attorneys only. Baker & McKenzie LLP is an accredited sponsor, approved by the State Bar of Texas, Committee on MCLE.

This 1 hour and 30-minute program has been applied for EDI credit under the Law Society of Ontario. Approval pending.

**While CLE credit may be pre-approved in certain jurisdictions, final CLE accreditation approval is anticipated, but not guaranteed.

Across Canada, provincial governments have begun lifting most of the COVID-19 related public health measures and employers are now grappling with what safety protocols to maintain for their workplaces given the recent shift towards a pre-pandemic “normal.”

In this In Focus video, our Labour and Employment lawyers explore considerations for employers before scrapping the restrictions entirely, provide guidance on responding to possible employee pushback, and deliver an update on the legal landscape of mandatory vaccination policies in Canada.

Click here to watch the video.

 

In a recent episode of Canadian Justice, Andrew Shaw joined a legal panel talking about the employee right to disconnect. Shaw discussed proposed employment legislation regarding the ability of people to disconnect from work, like emails or text messages, during non-work hours, and the implications for employers.

Click here to watch the interview.

This interview was originally posted in The News Forum.

On February 14, 2022, the Ontario government announced that the province will be moving to the next phase of reopening earlier than anticipated, with further restrictions being eased on February 17, 2022 at 12:01 a.m.

The new measures include:

  • Increasing social gathering limits to 50 people indoors and 100 people outdoors.
  • Increasing organized public event limits to 50 people indoors, with no limit outdoors.
  • Removing capacity limits in the following indoor public settings where proof of vaccination is required, including:
    • restaurants, bars and other food or drink establishments without dance facilities;
    • non-spectator areas of sports and recreational fitness facilities, including gyms;
    • cinemas, meeting and event spaces;
    • casinos, bingo halls and other gaming establishments;
    • indoor areas of settings that choose to opt-in to proof of vaccination requirements.
  • Allowing 50 percent of the usual seating capacity at sports arenas.
  • Allowing 50 percent of the usual seating capacity for concert venues and theatres.
  • Increasing indoor capacity limits to 25 per cent in the remaining higher-risk settings where proof of vaccination is required, including nightclubs, restaurants where there is dancing, etc.

Capacity limits in other indoor public settings such as grocery stores, pharmacies, retail and shopping malls will be maintained at, or increased to, the number of people who can maintain two metres of physical distance.

Effective March 1, 2022, the province expects to further lift restrictions, including:

  • Lifting capacity limits in all remaining indoor public settings.
  • Lifting proof of vaccination requirements for all settings.

See the official announcement from the Office of the Premier here. As the latest public health measures related to COVID-19 continue to affect how employers operate, please contact our team with any questions about what the upcoming measures could mean for your business.


Many thanks to Eleanor Dennis for her assistance with this article.

Background

In October 2021, the Quebec Government passed Bill 59, An Act to modernize the occupational health and safety regime. The Bill makes substantive changes to statutes involving health and safety in the workplace. These changes will gradually come into effect, with some already in force since October and others coming into force from now until 2024.

Key Features of Bill 59

The Bill introduces new provisions to the Act respecting occupational health and safety (the “AOHS”), including the following:

  • Prevention Program or Action Plan: Workplaces with 20 or more workers must establish and implement a prevention program that is specific to the workplace. The program must include certain features, such as identifying the health and safety risks in the workplace, along with the follow-up measures that will be taken to eliminate or control these risks, among other things. For workplaces with less than 20 workers, employers must instead establish an action plan to eliminate or reduce dangers to health, safety, and wellbeing.
  • Health and Safety Committee and Representative: All workplaces with 20 or more workers must establish a health and safety committee, regardless of the workplace’s operations or industry. Committees must include at least one individual that represents the workers and another that represents the employer. Once a committee is established, workers must designate a health and safety representative who is responsible for inspecting the workplace, receiving accident notices, investigating accidents, and filing complaints. For workplaces with less than 20 workers, a health and safety liaison officer should instead be designated to facilitate communication between the employer and the workers.
  • Protection for Workers Exposed to Violence: Employers are obligated to take necessary measures to ensure the protection of a worker exposed to violence in the workplace. This extends to family violence, psychological violence, sexual violence, and physical violence.
  • Teleworking: The AOHS applies to teleworking, where applicable.

Bill 59 also introduces new provisions under the Act respecting industrial accidents and occupational diseases (the “AIAOD”), such as:

  • Presumption of Reinstatement: An employer is deemed to be able to reinstate a worker who has suffered an employment injury, even once an employee’s right to return to work has expired. This presumption can only be rebutted if an employer can show it would experience undue hardship related to reinstatement.
  • Presumption of Occupational Diseases: The AIAOD enacts the Regulation respecting occupational diseases. This Regulation contains a list of diseases that are presumed to have been contracted in the workplace.

 Upcoming Obligations

The provisions requiring prevention programs, action plans, and health and safety committees and representatives come into force on April 6, 2022. For workplaces in Quebec with 20 or more workers, employers should begin creating their prevention programs and forming their health and safety committees, in line with Bill 59’s requirements.

We will provide updates as more of Bill 59’s provisions slowly come into force and as employers become subject to additional obligations in the workplace.

On January 20, 2022 the Ontario government announced that the province will move to a modified Step 3 of the Roadmap to Reopen, pursuant to Ontario Regulation 25/22 Rules for Areas at Step 3 (the “Step 3 Regulation“).

The changes include:

  • Increasing social gathering limits to 10 people indoors and 25 people outdoors.
  • Increasing or maintaining capacity limits at 50 per cent in indoor public settings, including but not limited to:
    • restaurants, bars and other food or drink establishments without dance facilities;
    • retailers (including grocery stores and pharmacies) and shopping malls;
    • cinemas, meeting and event spaces;
    • non-spectator areas of sports and recreational fitness facilities, including gyms;
    • recreational amenities and amusement parks, including water parks;
    • museums, galleries, aquariums, zoos and similar attractions; and
    • casinos, bingo halls and other gaming establishments.
  • Allowing spectator areas of facilities such as sporting events, concert venues and theatres to operate at 50 per cent seated capacity or 500 people, whichever is less.
  • Limiting the number of patrons permitted to sit at a table in bars, restaurants, meeting and event spaces and other venues at which food or drink is sold or served, including nightclubs, restobars and strip clubs that serve food and drink to 10 people.
  • Requiring patrons to remain seated while eating or drinking at indoor restaurants, bars and other food or drink establishments (with or without dance facilities), sporting events, concert venues, theatres and cinemas, casinos, bingo halls and other gaming establishments, horse racing tracks, car racing tracks and other similar venues.

Proof of vaccination and other requirements continue to apply in existing settings.

Effective February 21, 2022, the province expects to further lift restrictions, including:

  • Increasing social gathering limits to 25 people indoors and 100 people outdoors.
  • Increasing capacity at organized public events to 50 people indoors.
  • Lifting the 500-person limit on indoor spectator events, in spectator areas of facilities used for sports and recreational fitness activities (such as sporting events), concert venues, and theatres where proof of vaccination requirements are in effect, while requiring a capacity limit of 50 per cent of the usual seating capacity.
  • Removing capacity limits in indoor public settings where proof of vaccination is required, including but not limited to restaurants, indoor sports and recreational facilities, cinemas, meeting and event spaces as well as other settings that choose to opt-in to proof of vaccination requirements.
  • Limiting capacity in most remaining indoor public settings where proof of vaccination is not required to the number of people that can maintain two metres of physical distance, including personal care services, retailers (including grocery stores and pharmacies) and shopping malls.
  • Increasing indoor capacity limits to 25 per cent in the remaining higher-risk settings where proof of vaccination is required, including nightclubs, wedding receptions in meeting or event spaces where there is dancing.

The official announcement, along with an overview of the updated public health measures, can be found here. The modified regulation with the full list of Rules for Areas at Step 3 and at the Roadmap Exit Step can be found here.

Of note to Ontario employers with office workplaces is that the Step 3 Regulation removed the requirement that all employees to work from home if possible. While the Step 3 Regulation does not provide specific instructions regarding remote work, it includes a general compliance requirement that all business operate in accordance with Ontario’s Occupational Health and Safety Act (the “OHSA“). OHSA requires all employers to take every precaution reasonable in the circumstances for the protection of their workers and to keep their workers and workplaces free of hazards. If it is not possible to have employees safely work from the office, we recommend continuing to permit remote work arrangement, or hybrid models.

Employers should continue to ensure that their business is operating in compliance with the most updated advice, recommendations and instructions issued by public health officials. If you have any questions about what the current easing of restrictions might mean for your business, please contact our team.


Many thanks to Eleanor Dennis for her assistance with this article.

Our two-part webinar series 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 2021 and to prepare them for what’s on the horizon in 2022.

Using our “quick hits” format, we provided two content-rich presentations complete with practical takeaways in one hour per session.

Apply our Annual Canadian Employer Update Takeaways Checklist: Going into 2022 to help your organization’s leadership prepare for some of the most important employment law developments.

With a focus on mandatory COVID-19 vaccinations, among other topics, presenters for Part 1 explored:

  • Implementing mandatory vaccination polices and contractual provisions
  • Human rights considerations
  • Privacy considerations
  • Occupational health and safety considerations
  • Key differences between unionized and non-unionized workplaces
  • What does fully vaccinated mean now? The impact of future booster shots
  • Case law updates

Click here to view the webinar recording.

With a focus on labor, employment, and human rights law updates on areas that are top-of-mind for Canadian companies, presenters for Part 2 of this webinar series discussed:

  • A year in review: Top 10 employment law developments
  • Employment agreement updates
  • Practical responses to Ontario’s Bill 27, Working for Workers Act, 2021
  • Hybrid/work from home models

Click here to view the webinar recording.