Canada’s employment law landscape continues to evolve rapidly. From new AI disclosure requirements in hiring and expanding pay transparency obligations to increased scrutiny of independent contractors and proposed restrictions on noncompete agreements, employers face a growing web of compliance obligations across federal and provincial jurisdictions.
Our latest article (originally published in Chambers and Partners)
Most franchisors understand that franchisees are responsible for their own employees, and that a specific benefit of this arrangement is that it protects the franchisor from employment-related obligations to the franchisee’s employees. Many franchisors believe that the arrangement completely insulates them from such risk. However, under Canadian law, a franchisor can sometimes be treated as an employer of a franchisee’s workers.
This concept is known as the common employer doctrine. It does not just apply to the franchisor and franchisee relationship, but with any work arrangement involving multiple employers who may exercise control over the same workers. When it applies, a worker may be able to pursue employment-related claims against both the franchisee and the franchisor.
While these cases are highly fact-specific, franchisors should understand the types of involvement that can increase legal risk.
Canadian courts recognize that an employee may have more than one employer at the same time. In certain circumstances, related businesses can be treated as a single employer for employment law purposes. The analysis focuses less on corporate structure and more on the reality of the working relationship.
Courts will often examine whether multiple entities exercise significant control over a worker or operate in a way that suggests they jointly employ that worker.
Continue Reading How Much Control Is Too Much? Common Employer Risks for Franchisors
In recent years, provincial legislatures across Canada have increasingly focused on compensation transparency as a tool to address pay disparities in the workplace. While the federal government requires that federally regulated private sector employers across Canada conduct pay equity exercises, no federal law currently requires them to publicly report compensation information.
Special thanks to our articling student Rana Aly for contributing to this update.
Employers monitoring their employees in the workplace should be cognizant of their obligations under employment and data privacy laws. This article provides a primer on legal requirements for employee monitoring in Canada and contrasts employer compliance requirements in the provinces of Ontario, British Columbia, Alberta, Quebec, and Nova Scotia.
Employers must balance operational needs, such as safety, security, and productivity, with any privacy rights of their employees. Generally, monitoring should be reasonable, proportionate, and tied to a legitimate business purpose. Organizations must comply with applicable federal or provincial privacy laws, which can include safeguarding any employee personal information collected, obtaining employee consent in certain circumstances, and providing notice to employees of monitoring practices.
For federally regulated private-sector employers—such as banks, airlines, and telecommunications companies— employee monitoring is generally governed by the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA only applies to employee personal information in federally regulated workplaces; otherwise, it governs commercial and customer personal information across Canada.
Provinces that have enacted private‑sector privacy legislation deemed “substantially similar” to PIPEDA are exempt from PIPEDA’s collection, use, and disclosure provisions under section 26(2)(b). Presently, only British Columbia, Alberta, and Québec have privacy legislation that is substantially similar to PIPEDA.
In provinces which do not have substantially similar private‑sector privacy legislation, such as Ontario and Nova Scotia, PIPEDA does not apply to provincially regulated employers’ handling of employee personal information. In those provinces, employee privacy protections arise through a more fragmented framework that may include employment standards legislation, privacy torts under the common law, employment contracts, workplace policies, and collective agreements. While PIPEDA does not govern employee personal information for provincially regulated employers in such provinces, it continues to apply to commercial or customer personal information across all private‑sector organizations engaged in commercial activities.
Continue Reading Employee Monitoring in Canada: What Employers Need to Know
Proud to share that Jennifer Bernardo was recently spotlighted in Precedent Magazine. Jen is a stellar advocate for her clients and, in this profile, she shares how her office is an extension of her life, filled with items that help her thrive in her litigation practice.
The article is accessible here.
In a recent episode of Canadian Justice, Andrew Shaw joined a panel about the complicated employment law issues surrounding working remotely and return to work policies following the pandemic. Andrew discussed a hybrid work model, providing reasonable notice to employees of the requirement to return to work, employee time theft and much more.
Click here
The spread of the 2019 novel coronavirus — the virus responsible for COVID-19 — is now anticipated to reach pandemic levels. Officials from the Public Health Agency of Canada reiterate that the risk of a mass outbreak in Canada remains low, but have encouraged and enforced precautionary measures.
Employers should continue to be vigilant in ensuring a safe and healthy workplace. In addition to our previous client alert, employers should be mindful of the following checklist:
1. Appoint one or more coordinators who will be responsible for tracking and communicating the latest developments of COVID-19. The coordinator(s) should have the authority to make or advise on emergency decisions such as office closures and meeting cancellations.
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
The Ontario government introduced Bill 66, Restoring Ontario’s Competitiveness Act (“Bill 66”) on December 6, 2018. If passed, Bill 66 will make amendments to several pieces of legislation in Ontario. The government has stated that its objective in introducing these changes is to “lower business costs to make Ontario more competitive” and to “harmonize regulatory requirements with other jurisdictions, end duplication and reduce barriers to investment.” We outline below the proposed changes to the province’s labour and employment legislation below.
Continue Reading Ontario’s War on “Red Tape” Continues: PC’s Table Bill 66
We’re pleased to share Jordan Kirkness’s article, here, on the impact to employers of Bill 47, Making Ontario Open for Business Act. The article was published in today’s edition of the Globe and Mail.
If it comes into effect in its current form, Bill 47 will reverse most of Bill 148 (the previous
