Key employment and labour law developments have set the tone for 2019
2018 saw many developments in Canadian labour and employment law which significantly changed the landscape for employers, both during the year and for 2019. Here are 10 of the most notable things that happened across the country.
Canada first major world economy to legalize recreational cannabis federally. On Oct. 17, 2018, Canada’s Cannabis Act made it the first major economy to establish a legal framework federally for recreational cannabis use by adults. Legalization of recreational cannabis does not provide employees with a right to use it in the workplace and employers are entitled to establish policies prohibiting use and possession in the workplace. Cannabis for medical purposes continues to be regulated under the Access to Cannabis for Medical Purposes Regulations. Under federal and provincial human rights legislation, employers have a duty to accommodate cannabis use by employees medically authorized to do so and those addicted, unless accommodation creates undue hardship to the employer.
Legislative initiatives and the #MeToo movement made sexual harassment in the workplace a top priority for employers, while human rights tribunals increased damages in sexual harassment cases. 2018 saw heightened awareness among employers to implement strict policies and procedures regarding sexual harassment, to provide comprehensive anti-harassment training, and to conduct thorough investigations of complaints. Legislators amended several statutes by elevating employee rights when they experience sexual harassment and work-related stressors (Ontario’s Occupational Health and Safety Act and Workplace Safety and Insurance Act, 1997). Bill C-65, An Act to amend the Canada Labour Code, proposes to require federal employers to make substantial changes in addressing workplace violence and harassment. Harassment is recognized as a tort upon which a civil action may be based, and an employer is required to pay significant moral damages for a poorly managed investigation of a sexual harassment complaint. We saw an increased volume of employee complaints emboldened by the #MeToo movement. Finally, we witnessed an upward trend in damages for sexual harassment in human rights cases (see the Ontario human rights cases of A.B. v. Joe Singer Shoes Ltd. and G.M. v. X Tattoo Parlour.
The Ontario Court of Appeal provided guidance on maximizing enforceability of termination clauses. In 2018, the Ontario Court of Appeal, in Nemeth v. Hatch and Amberber v. IBM Canada, provided guidance to employers regarding how to draft termination clauses to maximize the likelihood of enforceability. The court confirmed that although it is presumed that on termination an employee is entitled to common law notice, this notice can be displaced when (a) the employment contract provides for minimum entitlements under the Employment Standards Act, 2000, and (b) the parties’ intention to displace common law notice is clearly and unambiguously expressed in the contract.
Ontario made major reforms to workplace statutes only to substantially reverse many. On Nov. 27, 2017, The Fair Workplaces Better Jobs Act, 2017 (Bill 148) significantly amended Ontario’s Employment Standards Act, 2000 (ESA), Labour Relations Act, 1995 (LRA) and Occupational Health and Safety Act. Most Bill 148 amendments took effect by April 1, 2018, with remaining scheduled to take effect Jan. 1, 2019. However, on Nov. 21, Bill 47, Making Ontario Open for Business Act, effectively reversed certain Bill 148 changes. With one exception, Bill 47’s changes came into force Jan. 1, 2019, and to the LRA Nov. 21, 2018.
Major amendments to Alberta, Quebec and British Columbia workplace legislation. Alberta’s Bill 17, the Fair and Family-friendly Workplaces Act, received Royal Assent in 2017 with effect on Jan. 1, 2018, amending Alberta’s Employment Standards Code and Labour Relations Code. Alberta’s Bill 30, An Act to Protect the Health and Well-being of Working Albertans received Royal Assent in 2017 with effect on June 1, 2018. Bill 30 amended Alberta’s occupational health and safety and workers’ compensation statutes.
Quebec made amendments to its Act respecting labour standards through Bill 176, An Act to amend the act respecting labour standards and other legislative provisions mainly to facilitate family-work balance, with Royal Assent June 12, 2018. Many amendments came into force that day, but others as late as Jan. 1, 2019.
British Columbia’s Bill 6, Employment Standards Amendment Act, 2018 received Royal Assent and was in force May 17, 2018.
Ontario introduced Bill 203, Pay Transparency Act — then delayed its coming into force date indefinitely. In April 2018, Ontario passed Bill 203, An Act Respecting Transparency of Pay in Employment, which was to come into force Jan. 1, 2019. On Nov. 15, Bill 57, Restoring Trust, Transparency and Accountability Act, 2018 was introduced with Royal Assent Dec. 6. It amended the Act Respecting Transparency by changing the effective date from Jan. 1, 2019 “to a day to be named by proclamation of the Lieutenant Governor.” The purpose of Bill 203 is to “increase transparency in hiring processes and give women more information when negotiating compensation that is equal to male peers.”
Ontario’s Police Record and Checks Reform Act, 2015 came into force as Canada’s first of its kind. Ontario’s Bill 133, The Police Record and Checks Reform Act, 2015, which applies to police record checks conducted to determine employment suitability, among other things, came into force Nov. 1, 2018. The act was created in response to concerns about barriers created by the inappropriate release of sensitive information — mental health history, non-criminal contact with police, unproven allegations, and police “carding” information — and inconsistencies in information collected and disclosed. The statute authorizes Ontario police services to conduct three types of police record checks — criminal record, criminal record and judicial matter, vulnerable sector — standardizes the process for conducting them, and prohibits the police record check provider from disclosing information unless authorized to do so in accordance with law. Non-conviction information may be obtained only on a vulnerable sector check and after satisfying stringent criteria for “exceptional disclosure.”
Federal government introduced a new Pay Equity Act with Royal Assent at the end of 2018, but with no announced effective date. On Oct. 29, 2018, the federal government introduced Bill C-86, Budget Implementation Act, 2018, No. 2, which, among other things, introduced the Pay Equity Act. The purpose of Bill C-86 is “to achieve pay equity through proactive means by redressing the systemic gender-based discrimination in compensation practices and systems of employers experienced by employees who occupy positions in predominately female job classes.” The statute applies to federal employers with ten or more employees. Bill C-86 received Royal Assent Dec. 13. The effective date will be announced by order of the Governor in Council.
A major legislative event is pending federally: modernization of the Canada Labour Code. The Minister of Employment, Workforce Development and Labour was instructed to update the Canada Labour Code, and has indicated that legislation will be introduced by Labour Day 2019. Proposals will likely focus on restoring work-life balance and providing better protections to part-time, temporary, and contract workers.
Nova Scotia Court of Appeal and Ontario Human Rights Tribunal rendered important decisions regarding what does, and does not, constitute human rights discrimination. Two 2018 decisions resolving disability and age-related claims provided insight into the types of conduct that rise to the level of prohibited employment discrimination. In Skinner v. Nova Scotia (Workers’ Compensation Appeals Tribunal), the Nova Scotia Court of Appeal held that administrators of employee group benefit plans have discretion to set limits on plan coverage and that denial of medical cannabis coverage does not constitute discrimination against an employee “based on” disability. The employer’s plan did not cover medical cannabis because it was not approved by Health Canada. There was no connection between the employee’s disability and the decision to deny coverage.
In May 2018, the Ontario Human Rights Tribunal declared in Talos v. Grand Erie District School Board, that s. 25(2.1) of the Ontario Human Rights Code, which allowed employers to terminate employee benefits at age 65, was unconstitutional as a prima facie violation of s. 15 of the charter which protects every Canadian’s right to be treated equally under the law and prohibits discrimination based on age.
For more information see:
• A.B. v. Joe Singer Shoes Ltd. 2018 HRTO 107 (Ont. Human Rights Trib.).
• G.M. v. X Tattoo Parlour, 2018 HRTO 201
• Nemeth v. Hatch, 2018 CarswellOnt 142 (Ont. C.A.).
• Amberber v. IBM Canada, 2018 CarswellOnt 10197 (Ont. C.A.).
• Skinner v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2018 CarswellNS 158 (N.S. C.A.).
• Talos v. Grand Erie District School Board, 2018 CarswellOnt 8879 (Ont. Human Rights Trib.).
