employment standards act

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.”
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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.
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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.
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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).
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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.
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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.
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On April 1, 2018, employers in Ontario will be subject to the new equal pay provisions under the Employment Standards Act  (“ESA”) brought in by Bill 148. As a general rule, employers can no longer establish distinct pay rates based on a “difference in employment status”, defined as follows:
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The Ontario Court of Appeal just released another decision on the interpretation and enforceability of termination clauses – the latest chapter in a less-than-clear set of guidelines. Generally speaking, a properly drafted termination clause can be used to limit an employee’s entitlements on dismissal.
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Ontario employers face a number of new challenges in 2018 as a result of the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”). To help employers navigate the many changes under Bill 148, we have outlined the key changes that employers need to be aware of. We have also indicated planning actions to consider in view of these changes.
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