family status discrimination

To wrap up 2023, we have highlighted the key developments in Canadian labour and employment law, with a focus on Ontario.

1. Ontario’s Working for Workers Acts

In 2023, the Ontario government continued building on previous legislation by passing Bill 79, Working for Workers Act, 2023, and introducing Bill 149, Working for Workers Four Act, 2023. These two bills are the latest in a series of legislative changes expanding employee rights which started with Bill 27 and Bill 88, passed in 2021 and 2022, respectively.

Bill 79, Working for Workers Act, 2023, received royal assent on October 26, 2023. Some of its key changes include:

  • The inclusion of remote employees in the head count for mass termination thresholds under the Employment Standards Act, 2000 (“ESA“);
  • An increase from $1.5 million to $2 million in the maximum fine that may be imposed on a corporation under Ontario’s Occupational Health and Safety Act; and
  • An expansion of eligibility criteria for reservist leave to include employees in treatment, recovery or rehabilitation for an illness or injury resulting from participation in certain reservist operations or activities.

Please consult our previous blog post for more detailed information on this Bill.

If passed, Bill 149, Working for Workers Four Act, 2023, which carried second reading on November 23, 2023 and was referred to a standing committee on social policy, would also introduce significant changes to a number of Ontario employment-related statutes. Among them, the Bill would require employers to disclose pay information in job postings (i.e., expected compensation or a range of expected compensation), and whether they use artificial intelligence in the hiring process. Additionally, and in an effort to eliminate discriminatory requirements towards immigrants, employers would also be prohibited from requiring Canadian experience. For more information on these changes, please read our previous blog post on the topic. 

2. Legislative Push for Pay Transparency in Canada

The past year has also seen a growing pay transparency trend, both in Canada and abroad, intended to help bridge the pay gap for historically-disadvantaged groups. Among the latest developments in this area, British Columbia passed the Pay Transparency Act, creating new obligations for employers to disclose certain pay information in publicly-advertised job postings, and to prepare annual pay transparency reports if they qualify as a “reporting employer” under the legislation. This new law also prohibits reprisal against employees for discussing or inquiring about their pay or for asking the employer to comply with its statutory pay transparency obligations.

Other provinces, including Newfoundland and Labrador, and Prince Edward Island have passed similar legislation. We covered this pay transparency trend in greater detail in two blog posts, accessible here and here. Ontario is also expected to amend the ESA to require the disclosure of certain pay information in job postings as part of Bill 179, as discussed above.  

3. New Tort of Harassment

Alberta recently became the first Canadian province to recognize the tort of harassment. The development is significant because it departs from Ontario and British Columbia, which have declined to recognize the tort.

In Alberta Health Services v Johnston2023 ABKB 209, the Alberta Court of King’s Bench recognized the tort of harassment because the harm in question could not be adequately addressed by any existing torts.  In this case, 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’ response to the COVID-19 pandemic. He referred to the AHS as Nazis and suggested that they should be subject to violent attacks. He targeted one AHS employee, Ms. Nunn, by sharing photos from her social media accounts, attacking her family and alleging she was an alcoholic.

The Court awarded Ms. Nunn, among other things, $100,000 in general damages for harassment.

In recognizing the tort, Justice Feasby canvassed existing case law across the country and found that no existing torts squarely addressed the harms caused by the harassment in question. Justice Feasby determined the tort of harassment exists 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/she knew or ought to have known was unwelcome;
  3. Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for his/her safety or the safety of his/her loved ones, or could foreseeably cause emotional distress; and
  4. Caused harm.

Besides the tort of harassment, other legal avenues that victims of harassment-related claims may pursue include human rights claims, occupational health and safety claims, a complaint with the police and, in Nova Scotia, an application for a cyber-protection order.

Employers should be aware of the legal remedies that may be available to victims of bullying and harassment, including the newly recognized tort of harassment in Alberta. More information can be found on our blog post here.Continue Reading Top Canadian Labour & Employment Law Developments of 2023