Claims alleging the misclassification of workers as independent contractors rather than employees are widespread. Properly classifying a worker’s status is critical because it determines substantive legal rights. In addition to independent contractors and employees, in Canada, there is a hybrid category — dependent contractors. To be classified as a dependent contractor, the contractor must be “economically dependent” on a particular client. Dependent contractor status may be found even where a worker conducts business through a corporation and hires employees to assist in the performance of the work.

In a significant decision, Canadian Union of Postal Workers v. Foodora Inc., the Ontario Labour Relations Board (the Board) held that couriers delivering food on behalf of Foodora Inc., an app based food delivery company, were dependent contractors under the Labour Relations Act, 1995 (the Act) and thus have the right to unionize under the Act. This is one of the first decisions commenting on the status of workers in the gig economy.

Continue Reading Decision Delivers Dependent Contractor Status to Foodora Workers

In 2020, trade tensions, uncertainties over Brexit, significant changes in the political landscape and unexpected global events, such as the Coronavirus outbreak, continue to present challenges for the global employer. Meanwhile, the relentless advance of technology is accelerating workplace transformation, creating an opportunity for employee growth and diversification across industries.

To help navigate the global framework of constantly evolving employment laws, the Global Employer Magazine 2020 Horizon Scanner outlines the most pressing 2020 developments and forecasted trends and their impact on your multinational workforce.

Click here to download the Report.

The Ontario Court of Appeal released yet another decision on the interpretation and enforceability of termination clauses: Rossman v. Canadian Solar Inc., 2019 ONCA 992. Recent appellate decisions on this matter have been inconsistent on this issue and unfortunately, Rossman is more bad news for employers. Nevertheless this decision provides guidance that should be considered in reviewing and drafting termination provisions in employment contracts. Continue Reading Saving Provisions Unable to Save Termination Clauses

With the spread of the novel 2019 coronavirus, employers may face significant disruptions in the workplace.

As of January 30, 2020, the World Health Organization declared the coronavirus outbreak a public health emergency of international concern. Officials from the Public Health Agency of Canada have stated that the risk of a major outbreak in Canada remains low, but has encouraged extra precautionary measures. Two cases in Ontario, and one in British Columbia have been confirmed.

Employers should be aware of the legal framework within which they can prepare, manage, and address developments caused by the spread of this virus. Continue Reading The Coronavirus: How Ontario Employers Can Prepare

Courts usually treat incentive compensation as part of the compensatory damages owed in lieu of common law reasonable notice of dismissal. However, if the employment contract and/or the incentive plan unambiguously extinguish entitlement to incentive compensation upon notice of dismissal, the agreement(s) will generally prevail over the common law entitlement. In O’Reilly v. IMAX Corporation, the Ontario Court of Appeal once again stressed the importance of using precise language in bonus or stock option plans to deny, or otherwise limit, employee entitlement to incentive compensation during the reasonable notice period. Continue Reading Avoiding the Cost of Imprecise Language in Incentive Compensation Plans

We’re pleased to share The Globe and Mail article, How co-working spaces expose companies to new legal risks. “Sharing office space with other companies and entrepreneurs can be an attractive option for growing businesses,” the author notes. But, as Jordan Kirkness points out, “when you’ve got your employees working in a work space that they share with other businesses, the potential for passing personal information, confidential information, on to the wrong person is just so much greater.” Jim Holloway cautions entrepreneurs about openly collaborating: “You know the old saying walls have ears? Well that’s true and it’s even worse when there are no walls”.

Our own Space for Agility series explores the many risk factors employers need to be aware of before considering co-working solutions as part of their real estate strategy. Please click here to read the most recent article in the series: Making Co-Working Work.

To ring in the New Year, we highlight the ten most significant developments in Canadian labour and employment law in 2019. Continue Reading Top 10 Canadian Labour & Employment Law Developments of 2019

On December 10, 2019, Bill 132: Better for People, Smarter for Business Act, 2019, received Royal Assent. Bill 132 amends many existing statutes to modernize outdated and ineffective regulatory requirements, aiming to increase regulatory efficiency. Amendments to the Ontario Pension Benefits Act (“PBA”) will give rise to the following key changes:

  1. Electronic Communications: Members of a pension plan are generally deemed to consent to the receipt of certain documents in electronic form. Electronic documents containing personal information must be sent in a secure format. Plan members will have the ability to opt out of receiving documents electronically at any time.
  2. Biennial Statements for Missing Members: The Financial Services Regulatory Authority (“FSRA”) now has the authority to waive the requirement to provide periodic written statements to missing members. To waive the requirement, FSRA must be satisfied that the plan administrator is unable to locate the member after making reasonable efforts to do so. Waivers are automatically revoked if the plan administrator receives contact information for the missing member.
  3. Family Law Matters: FSRA now has the authority to make rules respecting the processes for spouses to obtain a statement of imputed value, and for the transfer of a lump sum from a spouse’s pension plan.
  4. Conversion to Jointly Sponsored Pension Plans: Employers may apply for FSRA’s consent to transfer assets from a single employer pension plan into a jointly sponsored pension plan. If the application for registration of the jointly sponsored plan is not received by FSRA within 90 days after the application for consent is made, the application for consent is deemed not to have been made. FSRA has the ability to waive or vary certain provisions of the regulation with respect to conversion in appropriate circumstances.
  5. Plan Administrators: A board of trustees may now act as the administrator of a single employer jointly sponsored pension plan. Where a board of trustees is appointed as the plan administrator, the pension plan document or agreement must set out the powers and duties of the board of trustees.
  6. General Compliance & Rule Making Authority: Amendments to the “regulation scope provisions” of the PBA confirm that FSRA’s rules, and FSRA’s future amendments to those rules, may simply be adopted prospectively without revising the regulation.

The PBA amendments will come into force upon the date of proclamation, which has yet to be determined.

Co-working or shared working spaces are increasingly being used to keep up with the volatile and ever-changing business landscape. From gig workers and freelancers to project teams, modern workforce needs are being met through the short-term nature, reduced costs, and diverse and agile environments that these innovative workplaces offer. We’re pleased to share our timely report, Making Co-working Work, co-authored by Emily Harbison, which explores the many risk factors employers need to address to make co-working work.

We’re pleased to share a recent Canadian HR Reporter article, “Whistleblowers fear job loss, disclosure, retaliation”, with insight from Andrew Shaw. The article discusses the reasons why employees may be reluctant to report instances of wrongdoing by coworkers or members of management and what employers can do to facilitate legitimate complaints being brought forward. The article is accessible here.