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We are excited to share a recent Human Resources Director article, “What HR should know about the latest Working for Workers Act” with insight from Andrew Shaw.

The article discusses the latest amendments to Ontario’s Working for Workers Act. The most significant updates include the need for employers to include remote workers in their employee count in the case of mass terminations in Ontario and higher maximum fees for violations of employee protection laws.

Click here to view the article (originally published by Human Resources Director).

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

With pervasive inflation and an uncertain job market, many Canadians are emerging from the pandemic with bolder workforce demands. For example, in the spring of 2023, federal public servants made headlines with the largest strike in Canadian history. More recently, 3,000 Metro grocery store workers went on strike across Toronto, demanding higher wages. In mid-October 2023, GM narrowly averted significant disruptions to its operations by reaching a deal with Unifor, which represents 4,300 workers in Ontario.

Employers are rightly concerned about the potential for increased union activity, which can cause significant disruptions to operations. There are many things employers can do to stay union free, but it requires treading carefully because labour laws offer extensive protections to employees’ right to unionize. One wrong step by an employer can lead to penalties, fines, and potentially automatic certification.

Understanding how quickly the 3-step certification process unfolds

The certification process formalizes the collective bargaining relationship. And, understanding how this process works and appreciating how quickly it can move forward is essential for developing an effective union avoidance strategy.

Generally speaking, the process for certification in Ontario involves three steps:

1. The Organizing Drive

In this first step, to the extent possible, the union will try to keep the organizing drive a secret. During this period, the union will typically attempt to gauge employee interest by having union representatives approach them inside or outside the workplace, as well as online, talking to them about any issues they may have with the workplace, and sharing union information with them. Most union organizing campaigns involve signing up employees as union members and collecting union membership cards. One way that unions target employers for a union drive is by obtaining the names, contact information, and/or home addresses of the employees of a certain workforce, which they use to send them propaganda.

Employers are often unaware that this step is occurring even though a union organizing drive can last for months (or, in some cases, even longer). It is important for management to have reliable sources in the workforce to advise them when a union drive is happening. Timing is critical here.

2. The Application for Certification

Once the union has garnered enough support (signed membership cards from at least 40% of the workers), it will formally apply for certification with the Ontario Labour Relations Board. Once an application is filed, employers should receive a copy of it on the same day. The application will include:

  • A written description of the proposed bargaining unit that the union seeks to represent; and
  • An estimate of the number of individuals in the unit.

Employers have just two business days to file a response, which can include, among other things, a different bargaining unit description or a different number of employees in the proposed bargaining unit. As far as the bargaining unit scope goes, the employer may disagree on the basis that the description is too broad, contrary to the physical or administrative structure of the employer or puts employees together that have vastly different skills. Experienced legal counsel can provide strategic support for these employee status disputes. Notably, once an application for certification has been made, an employer cannot alter the terms and conditions of employment.

Next, the Board will hold a hearing to determine the appropriate voting constituency to be used for a representation vote based on the descriptions proposed by the union and the employer.

3. The Certification Vote

If the union shows support of at least 40% of the employees in the bargaining unit on the day the application is filed, the Board will set a date for a representation vote.

The representation vote will be held within five business days of the application for certification. If over 50% of the employees who cast ballots vote to unionize, the union will be certified and become the workforce’s exclusive bargaining agent.

During the time between when the representation vote is scheduled, and the date it happens, both the union and employer usually run vigorous campaigns. For the employer, this could involve holding meetings at which management can listen to employee concerns, and explain how they will be addressed (a process that must be done with great care in order to avoid an unfair labour practice complaint). Management typically also provides the benefits of staying union free and the potential downside of having a union.

What Can Employers Do?

Unions typically get traction in a workforce when employees believe that:

  • Working conditions are poor;
  • They lack job security;
  • Management does not respect them; and
  • There is favouritism in the workplace.

Here are four practices that create an atmosphere where employees never feel they have to resort to a third-party to protect their welfare:

1. Create a Positive Working Environment

Employees want to feel like they are heard and valued. To do so, employers can ensure that a shared sense of purpose guides the workplace.

For example, a UN Report suggested that companies implementing Environmental, Social, and Governance principles can increase shareholder value and positively impact their reputation and brand. Moreover, various studies have shown that employees between the ages of 25-34 consider an employer’s “values” and ESG principles when considering job offers. Therefore, employers should consider adopting policies prioritizing equity, diversity and inclusion.

Employers can also minimize the likelihood of a union drive by recognizing employee efforts, teamwork and company milestones. Employers can show appreciation for employees by providing monetary incentives, such as annual salary increases, bonuses, and ensuring competitive pay practices, or offering flexible working environments (e.g. working from home arrangements, four-day work-week arrangements, flexible paid time off policies, etc.).

2. Ensure Effective and Clear Internal Communication

Clear communication is critical to ensuring a good relationship between the employer and employee. One of the main marketing techniques unions use to cater to workforces is to convince employees that the union will ensure their voices are heard and that workplace issues will be effectively brought to the attention of employers and addressed promptly. To avoid creating an environment where this sounds attractive to employees, so much so that they’re willing to pay union dues to get it, employers can take steps to ensure that their workplaces have an open-door policy and complaints are resolved in an impartial and timely manner. Employees should feel confident that their concerns will be heard and addressed.

Further, consider adopting clear guidelines on how to disseminate information on policy and procedure changes before they are enacted. This will prevent employees from feeling ambushed or shocked by any changes. 

3. Promote Transparency and Fairness

Employees should clearly understand how to resolve disputes using existing company procedures. Moreover, they should also trust that their employers will handle conflicts appropriately, fairly and promptly. To facilitate such a process, ensure that the workplace has clear policies and procedures for dispute resolution and that management is appropriately trained to resolve such issues, including harassment, bullying, discrimination, etc. Consider refresher training on these policies and available channels for redress.

4. Expose Employees to the Challenges Associated with Joining Unions

Finally, if and when a union drive occurs, employers should try to educate workers on the potential repercussions of joining a union. For example, employees should understand that they will have to pay union dues and that employee compensation would be driven by seniority rather than individual productivity. Generally, in a unionized workforce, bad workers thrive and good workers suffer.

However, while employers can talk to employees about unions, they must refrain from making any communications that may be perceived as threatening, coercive, discriminatory, or may prevent employees from making free and informed decisions with respect to union representation. Doing so violates provincial labour laws and may result in penalties, fines, and automatic certification.

Key Takeaways

For many employers, union organization is a big problem. For some, it’s fatal.

Being organized increases costs and makes the workforce more challenging to manage. Employers’ hands are tied when seeking to reward top performers or disciplining poor ones. Disciplinary issues become a nightmare to deal with because employees can file grievances for the most insignificant disciplinary issues, which requires involving legal counsel and hearings. Terminating employees without cause is practically impossible in most unionized environments. When it comes time to renegotiate a collective agreement, usually once every three years, an impasse during negotiations could lead to significant business disruptions caused by strikes and lockouts. These negotiations are often very time-consuming and add to the overhead of running a business. All of this to say, when a business is unionized, operating becomes much more expensive. And in turn, the business becomes less competitive.

The two ways a business can avoid unionization are (1) run a campaign during a union drive and defend legal claims from the union with respect to employees’ voting status, unfair labour practices, etc., and (2) maintain an environment in which employees don’t want to unionize. Obviously, option two is much less costly and risky.

Here are some additional steps employers can take to stay union free:

  • Work with counsel to prepare a five-day plan for management to follow in the event they learn union organizing is underway. Given the tight timelines at most provincial labour boards, once an application for certification is filed, there is very little time to react. Not having a plan in place for running a campaign is often the difference between success and failure. These plans contain draft messaging for the workforce to convince them against voting for a union, where and when to hold meetings, and the dos and don’ts of messaging which can lead to unfair labour practice complaints.
  • Train management on how to appropriately respond to whiffs of union organizing. This is critical. Oftentimes, workforces will become unionized because a manager says or does the wrong thing (e.g. “you will be fired if you vote for the union”). Without training, management employees are often not aware of how strict labour boards are with respect to unfair labour practices, and the serious repercussions for the employer if one is committed.
  • Take steps to keep the lines of communication between the workforce and management open, and ensure issues are dealt with in a fair and timely manner. As discussed above, the goal of this is to foster an environment where employees don’t feel they need a union. In the long-term, this is the most cost effective way of preventing unionization.

For further support in this area, please contact your Baker McKenzie employment attorney. Our Toronto team has decades of experience with domestic and international labour relations. We frequently represent employers in industrial actions, designing and implementing programs and policies to maintain positive employee relations in non-union and unionized workplaces.

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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 Act (AODA).

Employers don’t often remember they have to do it again, every three years; because three years is a long time, a lot of people in HR tend to forget about these reporting requirements. So there tends to be a bit of a frenzy in December.

Dave Bushuev, an associate at Baker McKenzie.

For the upcoming December 31, 2023 deadline, employers in Ontario must provide an update on their employee-wide training efforts around AODA that covers the accessibility customer service standard, work-related accessibility topics, the Ontario Human Rights Code, and business accessibility policies. The aim is to ensure that employees know their obligations under AODA, and how to support and assist people who may have a disability and have trouble accessing services.

Click here to view the full article (originally published by Canadian HR Reporter, a subscription may be required).

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Special thanks to our Baker McKenzie speakers Jim HollowayTheo Ling and Usman Sheikhand Industry Leaders Mark Crestohl, Senior Counsel, Accenture, Diana Drappel, Assistant General Counsel, Royal Bank of Canada, Levin Karg, Manager, Ontario Securities Commission, and Raees Nakhuda, Senior Counsel, Thomson Reuters.

Baker McKenzie is pleased to invite you to a breakfast symposium exploring the legal ramifications of the Artificial Intelligence (AI) Revolution with esteemed industry leaders from Accenture, the Royal Bank of Canada, Thomson Reuters and the Ontario Securities Commission.

The panels include Baker McKenzie AI lawyers and will address key industry developments, essential operational considerations involving AI projects, and cutting edge legal and regulatory issues impacting companies now.

This event is ideal for corporate counsel and senior leaders responsible for managing the risks and leveraging the opportunities of the AI Revolution, and for those wishing to learn more

Date:

Wednesday, October 11, 2023

Time:

8:00 am – 8:30 am | Registration and Breakfast
8:30 am – 10:30 am | Program

Location:

Baker McKenzie
181 Bay Street
Suite 2100
Toronto, ON M5J 2T3

View the invitation and click here to register.

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We are pleased to share a recent Benefits Canada article, “Newfoundland and Labrador arbitrator rules pension grievance can proceed despite late filing, citing ‘culture of acquiescence’,” with quotes from Ajanthana Anandarajah.

In this case, an arbitrator ruled that a pension grievance filed seven years beyond a collective agreement’s time limit could proceed because of the employer’s “culture of acquiescence” regarding enforcement of the limit.

Click here to view the article (originally published in Benefits Canada).

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Cyberbullying is becoming an increasingly pertinent issue in the workplace. With the growing prevalence of remote work and employee social media groups, employers face greater liability for online communications that occur outside of the office.

While the law is sparse on the topic of cyberbullying, victims may have several legal avenues to address this issue. Employers should review their workplace violence and harassment policies and procedures to ensure they align with the current state of the workplace. In fact, employers ought to consider drafting a standalone cyberbullying policy to ensure they can adequately respond to a complaint of cyberbullying.

In a webinar hosted by the Human Resources Professional Association, our Labour and Employment lawyers discuss how employers can navigate this significant workplace issue, limit their liability, and comply with legal requirements.

Please click here to view highlights from this webinar recording.

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

The Alberta Court of King’s Bench recently became the first Canadian province to recognize the tort of harassment. This development is notable in the face of recent case law out of both British Columbia and Ontario that has declined to recognize a general tort of harassment.  

For example, the Ontario Court of Appeal in Merrifield v Canada (Attorney General), 2019 ONCA 205 overturned the finding of a trial judge who found that the tort of harassment existed in Ontario. The Court’s analysis explained that significant changes to the law should be left to the legislature, and the role of the courts is only to make incremental changes to the law. Similarly, British Columbia courts have also resisted recognizing the tort of harassment (Stein v Waddell2020 BCSC 253Anderson v Double M Construction Ltd2021 BCSC 1473). 

The recognition of a general tort of harassment by the Alberta Court of King’s Bench, coupled with case law post-dating Merrifield[1], may lead other Canadian courts to rethink their position on this issue. As discussed further below, Justice Feasby in Alberta Health Services v Johnston2023 ABKB 209, recognized the tort on the basis that the harm in question could not be adequately addressed by any existing torts (Nevsun Resources Ltd v Araya2020 SCC 5 at para 123). As such, where the facts of a case demand the creation of a novel legal remedy, other Canadian courts may recognize a similar tort of harassment.

Alberta Establishes a Tort of Harassment

In Alberta Health Services v Johnston, 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’s response to the COVID-19 pandemic. He repeatedly alleged an intention to prosecute AHS employees for “heinous crimes”, and stated that his goal was to “bankrupt AHS members”. He further referred to the AHS as Nazis and suggested that they should be subject to violent attacks. He particularly targeted one AHS employee, Ms. Nunn, by sharing photos from her social media accounts, attacking her family and alleging that she was an alcoholic. 

The Court awarded Ms. Nunn $300,000 in general damages for defamation, $100,000 in general damages for harassment, and $250,000 in aggravated damages. While the Court held that AHS was not eligible for damages, both Ms. Nunn and AHS were granted permanent injunctions restraining Mr. Johnston. 

In recognizing the tort of harassment, Justice Feasby canvassed the existing case law across the country and found that no existing torts squarely addressed the harms caused by the harassment. He found that while defamation and assault share some elements with harassment, they fall short of clearly addressing the type of harm suffered by Ms. Nunn. Similarly, the new privacy torts only address harassment where there is a reasonable expectation of privacy. 

Justice Feasby also noted that the recognition of the tort was merely a reflection of what Alberta courts have already been doing in the context of granting restraining orders.

In his decision, Justice Feasby defined the tort of harassment to exist 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 knew or ought to have known was unwelcome;
  3. Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and
  4. Caused harm.
Continue Reading An Emerging Tort of Harassment in Canada?
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Special thanks to our former summer associate Thanusa Sounthararajah for contributing to this update.

On July 1, 2023, the Employment Standards Act, 2000 (“ESA“), was amended to require temporary help agencies (“THAs“) and recruiters to obtain a license to operate in Ontario as of January 1, 2024. In addition, the Ontario government has published three regulations, O.Reg. 99/23, O.Reg. 288/01 and O.Reg. 289/01, that provide guidance on the new licensing regime and related requirements. These regulations also came into force on July 1, 2023.

Summary of Key Changes

The most important changes include:

  • Licensing Requirements: THAs and those who are considered recruiters under the ESA will need to apply for licenses to operate in Ontario. The ESA and O.Reg. 99/23 set out additional details on applying, renewing, refusing and revoking a license.
  • Record-Keeping Obligations: Recruiters will need to retain records of each prospective employee or employer who engages in the recruiter’s services for three years after the recruiter ceases to provide services to that individual. The recruiter will need to ensure that the records retained are readily available for inspection as required by an employment standards officer, to ensure accurate remuneration for employees.
  • Agency and Recruiter Transparency: Under O.Reg. 99/23, businesses and prospective employees in Ontario will now be able to consult the Ontario government’s online database before working with a THA or recruiter, to check if they have met the province’s licensing requirements. It will be a violation of the ESA if businesses knowingly engage and use unlicensed agencies.
  • Penalties: There are prescribed penalties in the ESA for when someone provides false or misleading information in a THA or recruiter license application. The amount can range from $15,000-$50,000. Furthermore, employment standards officers will issue penalties to THAs and recruiters if they operate without a license, and to those who knowingly use an unlicensed THA or recruiter. If businesses hire unlicensed recruiters, they will be responsible for compensating workers for any illegal fees charged to them. The penalties for each contravention are outlined in O.Reg 289/01.
  • Termination and Severance of Employment: Under O.Reg. 288/01, if an employment contract is terminated because the Director of Employment Standards has refused, revoked or suspended a license, the employment contract is not frustrated. The employee may still be entitled to termination or severance pay as per the ESA.

Key Takeaways

The Ontario government implemented these new licensing requirements to protect employee rights and to ensure that THAs and recruiters are all competing on a level playing field.

THAs and recruiters under the ESA should ensure that they are onside with the new requirements by the prescribed deadlines. Additionally, businesses and those working with THAs and recruiters must ensure that they are aware of and comply with these new amendments.

If you have any questions or need assistance with any of the above, please contact someone from our team.

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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 Background

Continue Reading A Change in Employment Terms is No Longer Required to Constitute <em>Prima Facie </em>Family Status Discrimination – The British Columbia Court of Appeal Clarifies