employment standards act

There is a presumption that an employee is entitled to common law reasonable notice upon termination of employment without cause. Employers may rebut this presumption through an enforceable termination clause that, at the very least, provides Employment Standards Act, 2000 (“ESA”) minimums, and displaces an employee’s right to common law reasonable notice.

In the past year, the Ontario Court of Appeal made it clear that it will find as unenforceable a termination clause where even the slightest imprecision could result in an unlawful contract. This trend started in Andros v. Colliers Macaulay Nicolls Inc., where the Court narrowly interpreted a failsafe clause as applying only to the first part of a termination clause but not the second. In Rossman v. Canadian Solar Inc., the same Court concluded that savings provisions, such as a failsafe provision, cannot save employers who attempt to contract out of the minimum standards prescribed by employment standards legislation. And most recently, in Waksdale v. Swegon North America Inc., the Court struck down a valid “without cause” termination sub-clause because the “for cause” termination sub-clause was unenforceable. In short, the Court concluded that where one of the sub-clauses is unenforceable, the entire termination clause must fall and it will not be saved by a severability clause.


Continue Reading Another Termination Clause Bites the Dust

If you are an Ontario employer who has implemented, or is considering implementing, temporary layoffs, wage reductions, or hours of work reductions, the Ontario Government’s recent changes will matter to you.

On May 29, 2020, the Ontario Government filed a new regulation changing the rules regarding employee eligibility for infectious disease emergency leave, temporary layoffs and constructive dismissals under the Employment Standards Act, 2000 (the “ESA”), with retroactive effect.

Below is a summary of the most important aspects of this new regulation and why the changes will matter to your workplace and employees.

How Long Do These Changes Last?

The regulation applies retroactively, dealing primarily 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”. The Government recently extended the current declared emergency until June 30, meaning the regulation will be operative until at least August 11, 2020. A further extension to the declared emergency is possible, and this would automatically extend the life of the new regulation.


Continue Reading Ontario Files New ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals

Ontario Government Declares State of Emergency

The Government of Ontario declared a province-wide state of emergency in an effort to contain the spread of COVID-19. This will impact employers and employees.

The government ordered the closure of all facilities with recreational programs, public libraries, private schools as defined in the Education Act, licensed child care centres, movie and performance theatres, concert venues and bars and restaurants. Bars and restaurants that offer take out or delivery services can remain open for that purpose.
Continue Reading Update on COVID-19: Impact on the Workplace in Ontario

On April 3, 2019, Restoring Ontario’s Competitiveness Act, 2019  (Bill 66) received Royal Assent. Bill 66 amends several pieces of legislation in Ontario. The government has stated that the changes are intended to “lower business costs to make Ontario more competitive” and to “harmonize regulatory requirements with other jurisdictions, end duplication and reduce barriers to investment.”
Continue Reading Hot Off the Press: Bill 66 Ushers in More Changes for Ontario Employers

This is part two in our series on recent Ontario Superior Court decisions that employers should be aware of before finalizing future employment agreements. See here for our first part, on the recent trend of lengthy notice period awards for long service employees of advanced age.

As most employers know, unenforceable termination clauses often give rise to costly wrongful dismissal claims. Yet the case law in this area is constantly evolving, and it is increasingly challenging to stay abreast of what a court will consider to be enforceable.
Continue Reading Defining “Cause” in a Termination Provision: Mind Your Language!

Although brevity is almost always better than wordiness, it would have been better if the legislature had used a few more words in the severance pay provisions of Ontario’s Employment Standards Act, 2000. Under the ESA, employers with a payroll of at least $2.5 million are required to provide statutory severance pay when dismissing an employee with 5 or more years of service. Unfortunately the provision is silent as to whether payroll within Ontario or, rather, global payroll is determinative. It would have been helpful if the drafters had indicated where, exactly, to draw the line.

The pendulum has swung back and forth on this issue. Most recently, the Ontario Labour Relations Board (“OLRB”) held that Ontario-only payroll is determinative, diverging from the direction previously taken by the Ontario Superior Court of Justice. We outline the key cases to date below.
Continue Reading Statutory Severance Pay: Ontario Labour Relations Board Decides $2.5M Threshold Does NOT Include Payroll Outside Ontario

We’re pleased to share a recent Canadian HR Reporter article, “Bill 66 could have ‘pretty profound’ impact on Ontario employers“, with insight from Andrew Shaw. If passed, Bill 66, Restoring Ontario’s Competitiveness Act, will amend Ontario’s employment standards, labour relations and pension benefits statutes, among other legislation, to cut business costs

In its first decision of 2019, the Ontario Court of Appeal has overturned the lower court’s decision in Heller v. Uber Technologies Inc., 2019 ONCA 1. The Court of Appeal held that an arbitration clause requiring arbitration in the Netherlands of disputes between drivers and Uber to be invalid and unenforceable. Based on the presumption that Uber drivers are employees of Uber, the Court of Appeal found that the arbitration clause was a prohibited contracting out of Ontario’s Employment Standards Act, 2000 (ESA).
Continue Reading Ontario Court of Appeal Invalidates Arbitration Clause Requiring Arbitration in Foreign Jurisdiction

On November 21, 2018, Bill 47, Making Ontario Open for Business Act, 2018  (“Bill 47”), passed Third Reading and received Royal Assent. Bill 47 repeals or rewrites numerous provisions of the previous government’s Fair Workplaces, Better Jobs Act, 2017  (“Bill 148”). To help employers navigate and prepare for the many changes under Bill 47, we have summarized the key changes and what is left intact.
Continue Reading Ontario’s Bill 47 Gets Green Light

On October 23, 2018, the Ontario government introduced Bill 47, Making Ontario Open For Business Act, 2018, to repeal numerous provisions of the previous government’s Fair Workplaces, Better Jobs Act, 2017  (Bill 148). The government indicated that the proposed amendments are designed to “remove the worst burdens that prevent Ontario businesses from creating jobs while expanding opportunities for workers.” We outline the key provisions of Bill 47 below.
Continue Reading Ontario Government Introduces Bill 47 to Reverse Most of Bill 148