Ontario

Subscribe to Ontario via RSS

Special thanks to our articling student Andie Hoang for contributing to this update.

As artificial intelligence and its integration into business operations continues to evolve rapidly, many employers are exploring the use of AI systems in a bid to make hiring decisions more efficient and data-driven. “AI” encompasses a wide range of technologies from simple automated resume screening tools and complex machine learning systems to the forward-looking agentic AI – the kind of AI that does tasks independently.

This rise in the use of AI tools in making employment-related decisions has spurred legislators to regulate their use. This has created a minefield of increased legal liability for employers, especially concerning privacy considerations and the potential for these tools to exhibit biased decision-making. This article provides an overview of the current state of legislative developments related to AI in hiring and recruitment in Ontario, federally, and internationally. It also highlights best practices for employers who are considering the adoption of such tools. 

Legislative Developments in Ontario, the Federal Jurisdiction and Beyond

Ontario

On March 21, 2024, Bill 149 – Working for Workers Four Act received Royal Assent as part of a series of legislative initiatives that have been introduced by the Ontario government under the “Working for Workers” banner since 2021. Each piece of legislation in this series seeks to address various contemporary issues within Ontario workplaces through amendments to the Employment Standards Act, 2000 (the “ESA”). Bill 149 brings about a number of additional changes that will be relevant for employers (which are summarized in our blog post), especially relating to the use of AI in the hiring process.

Starting January 1, 2026, employers will be required to disclose in job postings whether they are using artificial intelligence in the hiring process (i.e., if AI is being used to screen, assess or select applicants for the given position). For the Ontario government, the purpose of such disclosure is “to strengthen transparency for job seekers given that there are many unanswered questions about the ethical, legal and privacy implications that these technologies introduce.”Continue Reading Artificial Intelligence, Real Consequences? Legal Considerations for Canadian Employers Using AI Tools in Hiring

In the recent case of Preston v. Cervus Equipment Corporation, Ontario’s Court of Appeal offered employers a friendly reminder that well-drafted settlement documents will survive judicial scrutiny.

Key Takeaways for Clients

Preston underscores the necessity of clear and precise language in settlement agreements. Employers should use broad and inclusive release language that can encompass a wide range of claims, even those not explicitly mentioned. By carefully drafting settlement agreements, employers can ensure that the settlement documents have the intended effect of concluding the employment relationship without courts stepping in to frustrate the finality of the settlement documents.

Background

The case revolves around the interpretation of a release and indemnity clause in the settlement documents signed by Mr. Preston after his termination from Cervus Equipment Corporation. Mr. Preston was employed by Cervus from 2014 to 2018 and participated in the company’s Deferred Share Plan.

Upon his termination without cause in January 2018, Mr. Preston had 4,964.04 vested stock units valued at $75,949.81 and 4,499 unvested stock units. Cervus informed him that his vested stock units could be exercised according to the Plan and offered him a severance package of 15 weeks’ pay in lieu of notice. The parties then discussed and settled the matter. The settlement documents included a broad release of claims, which Mr. Preston signed after receiving independent legal advice.

Notably, the release language in the settlement documents did not specifically refer to the stock plan and vested stock units in question, but did reference that Mr. Preston was releasing all claims connected to his employment, and that he had no entitlement or claim with respect to any bonus, share award, stock option, or similar plan that his employer had offered to him.Continue Reading Ontario’s Court of Appeal Highlights the Importance of Respecting Broad Release Language in Employment Settlement Agreements

In the recent case of Bertsch v. Datastealth Inc., 2024 ONSC 5593 (Bertsch), an Ontario court upheld a termination provision that did not specify every detail. While recent decisions suggest that such provisions may have to be flawless to be enforceable, Bertsch is a welcome decision showing that employers do not necessarily have to meet that high bar to protect themselves.

Key Takeaways

Bertsch reminds employers of the importance of including clear and compliant termination provisions in employment agreements. Ontario employers should review their agreements to ensure they meet the requirements of the Employment Standards Act, 2000 to avoid potential legal challenges. Employers should continue to confirm their termination provisions are:

  1. Clear and unambiguous to avoid disputes and potential invalidation by the courts.
  2. Compliant with the ESA and its regulations.
  3. Inclusive of language stating that compliance with the ESA and whatever other entitlements are listed in the employment agreement satisfy any common law notice of termination or pay in lieu thereof.

Bertsch demonstrates that while courts will continue to closely scrutinize termination provisions in employment agreements, employers must only ensure that the provisions are legal and unambiguous. This provides some relief for Ontario’s employers by indicating that they do not necessarily have to rely on “perfect” termination clauses that reference all scenarios and laws in their employment agreements to enforce them.

Even with this positive decision for employers, we continue to encourage all Canadian employers to assess the enforceability of termination provisions in existing employment agreements.Continue Reading Don’t Let Perfect Be the Enemy of Excellent: Ontario Court Validates Termination Clause that is Unambiguous and Legal

Special thanks to our articling student Andie Hoang for contributing to this update.

In 2022, the Ontario government sought to establish a new legal framework for “digital platform work” through the introduction of the Digital Platform Workers’ Rights Act, 2022. It is now set to come into force on July 1, 2025. The Act, stemming from the Working for Workers Act, 2022, introduces new rights and protections for workers within the gig-economy. Specifically, the Act will apply to workers who perform “digital platform work” (such as ride share, delivery, or courier services) and “operators” who facilitate the performance of digital platform work through a digital platform.

Summary of Significant Changes

In conjunction with the Act, the Government of Ontario has recently published regulations that further clarifies the new rights and obligations under the Act. Key worker rights and new obligations include:

  • Right to a Minimum Wage: Digital platform operations will be required to pay a worker at least the minimum wage rate payable under the Employment Standard Act, 2000 (ESA), exclusive of tips and other gratuities, for each “work assignment” performed. Subject to specific exceptions, a “work assignment” will typically begin when a worker accepts a work assignment through a digital platform and ends when the worker performs the assignment.

Continue Reading A New Gig for Digital Platform Work: Ontario’s Legal Framework for Digital Platform Workers Comes into Force July 1, 2025

Special thanks to our articling student Mario Lofranco for contributing to this update.

In a previous blog post, we discussed the proposed changes that Bill 149 would bring to several employment statutes, building on the Working for Workers Acts, 2021, 2022, and 2023.

Bill 149 received royal assent on March…

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 Johnston, 2023 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

What Canadian Employers Need to Know to Ring in 2024

In 2023, we helped Canadian employers overcome a host of new challenges across the employment law landscape. Many companies started the year with difficult cost-cutting decisions and hybrid work challenges. We’ve worked hard to keep our clients ahead of the curve on these issues, as well…

Special thanks to our articling student Madison Bruno for contributing to this update.

On November 14, the Ontario Government introduced Bill 149, Working for Workers Four Act, 2023. If passed as expected, Bill 149 would significantly change several employment statutes, building on the Working for Workers Acts, 2021, 2022, and 2023. Key changes include: new requirements for Ontario employers to disclose pay information in job postings; a new obligation to disclose whether artificial intelligence was used during the hiring process; and it would prohibit using Canadian work experience as a job requirement.Continue Reading Ontario Poised to Pass Major Changes to Job Posting Requirements

We are excited to share a recent Human Resources Director article, “What HR should know about the latest Working for Workers Act” with insight from Andrew Shaw.

The article discusses the latest amendments to Ontario’s Working for Workers Act. The most significant updates include the need for employers to include remote workers in their employee…