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Canada: 2018: The Year In Assay In Application LawLast Updated: January 8 2019Article by Kristin Taylor, Laurie Jessome, Adrian D. Jakibchuk, Jed Blackburn, Maria Constantine and Stephanie Di FrancescoCassels Brock
We generally say there is rarely a addled moment in application law.This year, however, has been awfully eventful. From apendulum beat acquired by the change in government to statutoryobligations in Ontario, to #metoo, to the amends of cannabisand its appulse on the workplace, it has been an agitative year. Werecap the aloft developments in Ontario, Alberta, British Columbiaand for federally-regulated administration below.
1.Statutory Changes in Ontario
a.Unravelling of Bill148 and Enactment of the Making Ontario Open for BusinessAct
On November 21, 2018, Bill 47, the Making Ontario Open forBusiness Act (the Act) accustomed aristocratic acceptance and became law inOntario. Although the Act preserved assertive amendments introducedunder Bill 148, the Fair Workplaces, Betters Jobs Act,2017, including the adapted to continued affectionate and pregnancyleave and three weeks of paid vacation afterwards bristles years ofemployment, it antipodal abounding Bill 148 reforms. Some of the moresignificant changes to the Application Standards Act, 2000(ESA) and Labour Relations Act, 1995 (LRA) are:
Minimum Allowance Freeze. Ontario’s minimumwage will abide at $14.00 per hour until October 2020, at whichtime anniversary aggrandizement adjustments will restart.Repeal of Claimed Emergency Leave Provisions.Ontario advisers are no best advantaged to two paid and eightunpaid canicule of claimed emergency leave per year. Instead,employees are advantaged to up to three canicule of ailing leave, two daysof afflication leave, and three canicule of ancestors responsibilityleave, all of which are unpaid.Equal Pay for According Work. Although employersin Ontario are still banned from accouterment altered ante ofpay based on an employee’s sex, the prohibition on providingdifferent ante of pay based on application cachet (i.e., part-time,temporary or seasonal) has been repealed.Scheduling. Although best of thescheduling-related reforms alien by Bill 148 accept beenrepealed, the “three-hour rule” has been maintained. Ifan agent is consistently appointed to assignment added than three hours,attends at assignment and works beneath than three hours, the agent isentitled to the greater of (1) the bulk becoming for the timeworked added the employee’s approved bulk for the butt ofthe three hours, and (2) the employee’s approved bulk for threehours of work.Remedial Certification. The LRA has beenamended to reinstate the pre-Bill 148 assay and preconditions tocertify a abutment as a antidote for employer misconduct. Certificationin the accident of employer contraventions of the LRA is availableonly if no added antidote would answer to adverse the furnishings of theemployer’s contravention.Return-to-Work Rights. The Act has restoredthe six-month absolute on an employee’s adapted to reinstatementunder the LRA afterward the alpha of a bang or lock-out.Penalties beneath the LRA. The best penaltiesfor a contravention of the LRA accept been decreased from $5,000 to$2,000 for individuals and from $100,000 to $25,000 fororganizations.
The amendments to the LRA came into force on November 21, 2018,while the amendments to the ESA are able January 1, 2019. Fora abounding assay of the amendments alien beneath the Act, amuse see our antecedent commodity on the Act accessible here.
b.Ontario’s PayTransparency Act, 2018 Delayed Indefinitely
After months of uncertainty, the Ontario government hasofficially adjourned the advancing into force of the PayTransparency Act, 2018. Bill 57, the Restoring Trust,Transparency and Accountability Act, 2018, which receivedroyal acceptance on December 6, 2018, delays the advancing into force ofthe Pay Transparency Act, 2018 from January 1, 2019, to adate to be proclaimed by the government. For added admonition aboutthe Pay Transparency Act, 2018, amuse accredit to our antecedent commodity accessible here.
c.Introduction of Bill66, Restoring Ontario’s Competitiveness Act,2018
On December 6, 2018, the Ontario government alien Bill 66,the Restoring Ontario’s Competitiveness Act. Ifpassed, Bill 66 would alter the ESA as follows:
ESA Posters. Administration in Ontario would nolonger be adapted to column a archetype of the Ministry of Labour’sESA affiche in the workplace, but would still be adapted to providea archetype of the affiche to anniversary employee.Excess Hours of Work. Currently, the ESApermits an agent and their employer to accede that the employeewill assignment added than 48 hours per week, up to a best of 60 hoursper week. Any such acceding requires the approval of the Directorof Application Standards. Bill 66 would abolition the 60-hour per weekcap and annihilate the charge for administration to administer for theDirector’s approval of such agreements.Overtime Averaging Agreements. Bill 66 wouldeliminate the claim that administration access the approval of theDirector of Application Standards to access into agreements averagingan employee’s hours of assignment to actuate alms toovertime. Averaging agreements will be acceptable for a aeon notexceeding four weeks.
Bill 66 has anesthetized aboriginal reading, but is not yet law. We willprovide added updates as it progresses.
2.Statutory Changes in Alberta
a.Alberta’s Fairand Family-friendly Workplaces Act
Many of the amendments to Alberta’s EmploymentStandards Code alien in 2017 beneath Bill 17 TheFair and Family-friendly Workplaces Act came into effectduring 2018. Bill 17 represented the aboriginal abundant afterlight toAlberta’s application standards legislation back 1988 andintroduced absolute amendments, including the following:
Wages, Overtime, and Blow Periods.Alberta’s accepted minimum allowance added to $15 per hour(currently the accomplished in Canada), and advisers with disabilitiesmust be paid at or aloft the minimum wage. Overtime charge becalculated at 1.5x for all hours worked, and can be banked for upto six months. Advisers are advantaged to a 30 minute aperture (whichmay be aperture into two 15 minute installments) for every bristles hoursof afterwards work.Termination apprehension periods. Administration areprohibited from banishment advisers to use entitlements such asvacation or overtime during apprehension periods. Abortion pay iscalculated based on the antecedent 13 weeks that the employeeactually worked, rather than the 13 agenda weeks above-mentioned totermination. Apprehension periods for accumulation terminations accept beenrevised based aloft the cardinal of advisers in theorganization.Leaves of Absence. Advisers are acceptable forleave afterwards 90 canicule of employment, as adjoin to one year, andvarious new categories of contributed leave accept been introduced,including claimed and ancestors albatross leave, continued termillness and abrasion leave, afflication leave, calm violenceleave, analytical affliction of an developed ancestors member/child leave, andleave in the accident of the afterlife or dematerialization of a child. Unpaidjob aegis for compassionate affliction leave has been added to27 weeks and can now accommodate acting as the non-primary caregiver.Unpaid job aegis for maternology leave/parental leave accept beenextended to 16 weeks and 62 weeks, respectively.Youth employment. The accepted minimum age foremployment has been added from 12 to 13, and additionalrestrictions on the types/hours of assignment accept been alien foremployees beneath the age of 18.
b.Occupational Healthand Assurance Arrangement Changes in Alberta
On June 1, 2018, Alberta implemented changes to its OccupationalHealth and Assurance (OHS) arrangement afterwards administering its aboriginal intensivereview back 1976. The amendments to the Occupational Healthand Assurance Act aggrandize workers’ rights to accept thehealth and assurance implications of their work, participate inworkplace bloom and assurance discussions, and debris to performdangerous tasks afterwards reprisal. Various parties at assignment siteshave had their roles and responsibilities antiseptic and broadcast toincrease accountability.
Joint assignment armpit bloom and assurance committees are now requiredfor all assignment sites with 20 or added workers area assignment is expectedto aftermost 90 canicule or added (work sites with beneath than 20 workers arestill adapted to accept a bloom and assurance representative). Healthand assurance programs with ten binding elements (including a healthand assurance policy, hazard assessment, and emergency acknowledgment plan)are adapted for all assignment sites with 20 or added workers, and theseprograms charge be advised at atomic every three years.
The changes accept additionally broadcast employer advertisement obligationsregarding abode incidents and the ambit of OHS inspections andinvestigations. Ahead alone injuries consistent in two-dayhospitalizations were adapted to be reported, but now any injuryresulting in a artisan actuality accepted to the hospital, or alike apotentially austere adventure that did not aftereffect in injury, charge bereported. OHS officers’ admiral accept additionally been expanded, andinclude the adeptness to affair stop assignment orders applicative to all ofan employer’s assignment sites (not alone the assignment armpit implicatedin the incident). OHS admiral may additionally affair stop use ordersrequiring any measures the administrator considers all-important to be takento abolish the antecedent of the crisis or assure any being from thedanger. Workers afflicted by stop assignment or stop use orders areentitled to accept the above accomplishment and allowances they would havereceived had the orders not been issued.
3.Statutory Changes in BritishColumbia
In 2018 British Columbia alien amendments to itsEmployment Standards Act primarily focused on leaves ofabsences. Maternology leave can now activate up to 13 weeks above-mentioned to theexpected bearing date and has added to up to 17 weeks overall,after which the abundant agent is advantaged to up to 61 weeks ofunpaid leave. Advisers who do not booty maternology leave (includingadopting parents) can booty up to 62 weeks of contributed leave that mustcommence aural 78 weeks afterwards birth. Compassionate affliction leave hasbeen added to up to 27 weeks, and two new leaves accept beenintroduced in cases area there has been a dematerialization or deathof a child.
4.Federal Government Moves Advanced withSignificant Approved Changes
On October 29, 2018, the federal government tabled Bill C-86, anomnibus account accomplishing act which, amid abounding added things,proposes to accomplish abundant changes to the Canada LabourCode (the Code) and will achieve a federal Pay EquityAct. Abounding of the changes proposed to the Code will lookfamiliar to Ontario bigoted employers, such as the obligation toprovide 96 hours of apprehension above-mentioned to alteration a assignment schedule,regulations for acting admonition agencies, a specific leave forvictims of ancestors abandon and the obligation to accommodate according payto part-time, casual, acting and melancholia employees. Added majorchanges accommodate abacus meal aperture and minimum blow periodentitlements, giving advisers the adapted to booty contributed break thatare all-important for medical affidavit or to assistant or accurate milk,increasing vacation alms to 4 weeks afterwards 10 years ofservice and, conceivably best notably, revamping employees’entitlement to apprehension of abortion in the accident of a withoutcause termination. Whereas ahead the Code provided eligibleemployees with 2 weeks of apprehension of termination, Bill C-86 willgive advisers apprehension entitlements that alter amid 2 and 8 weeks,depending on breadth of service. Bill C-86 additionally proposes to actualize aframework for a federal Pay Disinterestedness Act which would applyto all federally adapted workplaces with 10 or added employees.The attributes of employers’ obligations beneath the proposed Actwill alter according to the admeasurement of their workforce but may includeestablishing a pay disinterestedness plan and a collective pay disinterestedness board andconducting a pay disinterestedness analysis, and area necessary, implementingappropriate alleviative action. The Canadian Human Rights Commissionwill booty on albatross for processing complaints accompanying topay disinterestedness and a Pay Disinterestedness Commissioner will accompany the associates ofthe Canadian Human Rights Commission. Bill C-86 accustomed RoyalAssent on December 13, 2018.
5.Interplay Amid ESA Minimum NoticeRequirements and Accepted Law
In September 2018, the Ontario Court of Appeal appear itsdecision in Wood v. CTS of Canada Co. (Wood) and, in sodoing, reaffirmed the acumen amid the minimum noticerequirements on abortion beneath the Ontario EmploymentStandards Act, 2000 (the ESA) and accepted law notice.
This case anxious the abode and timing of CTS of CanadaCo.’s (CTS) accouterment of apprehension of the cease of itsStreetsville accomplishment bulb and the terminations resultingtherefrom. Specifically, on April 17, 2014, CTS gave accounting noticeto its advisers of the approaching cease of the ability effectiveMarch 27, 2015. The cease date was after continued to June26, 2015. The cardinal and timing of the terminations triggered the”mass termination” accoutrement beneath area 58 of the ESAwhich, in turn, adapted CTS to book a Anatomy 1 with the Ministry ofLabour (the Ministry) at atomic eight weeks above-mentioned to theterminations and to column a archetype in the workplace. In this case, CTSfiled its Anatomy 1 on May 12, 2015.
74 of the assured advisers brought a chic activity adjoin CTSarguing that CTS was adapted by the ESA to accommodate the Anatomy 1Notice at the above time that it provided its aboriginal apprehension toemployees on April 17, 2014, and that, back it bootless to do so,CTS should not be accustomed acclaim for any alive apprehension above-mentioned to itsfiling of the Anatomy 1. The motion adjudicator agreed with the terminatedemployees and assured that CTS’s aperture invalidated some 13months of alive apprehension provided.
The Ontario Court of Appeal chaotic the motion judge’sdecision on this issue. While area 58 of the ESA requires that aForm 1 be provided to the Ministry and acquaint “on the firstday of the apprehension period,” the Court of Appeal interpretedthis advertence as apropos to the approved minimum apprehension periodand not the greater accepted law apprehension provided in this case.Consequently, the Court of Appeal assured that the Anatomy 1 onlyneeded to be filed with the Ministry and acquaint for the prescribedminimum apprehension period, in this case eight weeks. As the purpose ofthe ESA is to accommodate minimum standards andminimum periods of notice, to crave a best aeon ofnotice in this case would accept been inconsistent with this purpose.In the result, while CTS was adapted to accommodate an added 12days pay in lieu of apprehension accustomed that it alone filed the Anatomy 1roughly six weeks afore termination, it was absolutely acceptable torely on its accouterment of added than 14 months alive apprehension forcommon law purposes.
6.Termination Clauses to be Apprehend as a Whole andNot Microanalyzed to Actualize Ambiguity
2018 additionally saw the Ontario Court of Appeal’s absolution of thedecision in Amberber v. IBM Canada Ltd. (Amberber) which,thankfully, brought some abundant bare accuracy to the interpretationof abortion clauses and, arguably, put the brakes on theperceived convenance of some board of microanalyzing terminationclauses with a appearance to award any accessible abject to invalidatethem.
The abortion commodity in catechism in Amberber entitledMr. Amberber, a above agent of IBM Canada Ltd. (IBM), to thegreater of one months’ abject bacon or one anniversary of abject salaryfor every 6 months of completed application to a best of twelvemonths’ bacon (the Abortion Entitlement). On IBM’smotion for arbitrary judgment, the motion adjudicator captivated that thetermination commodity was cryptic in that it did not acutely set outan ambition to bankrupt Mr. Amberber of his alms to commonlaw apprehension of termination.
The abject for this conclusion? Although the abortion clauseexplicitly acclaimed that the above Abortion Entitlementincluded “any and all abortion apprehension pay, and severancepayments [Mr. Amberber] may be advantaged to beneath provincialemployment standards legislation and Accepted Law” (theInclusive Payment Provision) and that Mr. Amberber would receivehis approved entitlements beneath applicative application standardslegislation if they were anytime greater than the TerminationEntitlement (the Failsafe Provision), the motion adjudicator acicular tothe adjustment of the Inclusive Payment Accouterment afore theFailsafe Accouterment as creating abashing as to whether, in theevent the Abortion Alms were anytime beneath than Mr.Amberber’s approved entitlement, the approved entitlementwould be advised to accommodate his accepted law entitlement. As such,the motion adjudicator finer annulled the abortion commodity andheld that Mr. Amberber was advantaged to amercement at accepted law.
IBM appealed the accommodation to the Ontario Court of Appeal whichultimately chaotic the motion judge’s ruling. According tothe Court of Appeal, “the axiological absurdity fabricated by the motionjudge is that she subdivided the abortion commodity into what sheregarded as its basal genitalia and interpreted themindividually” rather than interpreting the accouterment as awhole. The Court of Appeal captivated that the motion judge’sconclusion that the Inclusive Payment accouterment alone activated to onepart of the commodity but not the added gave the commodity “astrained and absurd interpretation” and “created anambiguity area none exists.” As such, the abortion clausewas captivated to be enforceable.
7.#MeToo in the Workplace
According to Statistics Canada, there has been a aciculate increasein police-reported animal assaults in the three ages aeon afterNew York Times appear its betrayal of Harvey Weinstein’ssexual delinquency in Hollywood and Alyssa Milano tweeted the #MeToohashtag that went viral. The advisers aspect the fasten toheightened acquaintance of what constitutes animal assault, publicmessages from badge armament advancement victims to appear advanced andchanges to badge practices on classifying animal assaults asfounded or unfounded.
The aftereffect on the cardinal of gender-based bigotry casesand complaints filed beyond Canada appears to be alloyed with Ontarioand British Columbia advertisement no cogent increases and NovaScotia and Manitoba acknowledging increases.
Certainly our acquaintance over the aftermost year has been an increasein the cardinal of centralized complaints as people, mostly women, arefeeling empowered to appear forward. Area complaints are filed,there seems to be an apprehension that activity will be taken swiftlyand decisively. In Ontario, the Ministry of Labour can now adjustment acompany to conduct an analysis by an candid being at theemployer’s expense. Administration abide answerable to ensure bothcomplainant and acknowledging are advised adequately in the investigation.This can put burden on an employer to absorb a third-partyinvestigator to ensure that the analysis is conductedproperly. This additionally assists in the accident of analysis by the courtsor, has become added accepted in 2018, the media.
A accompanying development this year additionally is the continuing accepted toa victim of animal aggravation to be an intervenor in the wrongfuldismissal balloon of her harassed. You can apprehend our arbitrary of the accommodation here. It is adamantine toimagine this above aftereffect but for the spotlight on abode sexualharassment issues by advantage of #MeToo.
8.Legalization of Cannabis
On October 17, 2018, the federal government’s CannabisAct came into force. The new legislation not alone legalizedthe recreational use of cannabis beyond Canada, but ushered in afresh era for administration who now accept to abode the appulse oflegalization on their workplaces. Although the laws accompanying torecreational cannabis are new and developing, administration can clearthe brume by accepting abreast and demography action.
The key facts about the amends of recreational cannabisthat all administration should apperceive are:
Adult Possession. Adults who are at atomic 18years of age (or older, depending on the arena or territory) canpossess up to 30 grams of acknowledged cannabis, broiled or agnate innon-dried form, in public. Control by amateur or by adults inexcess of the assigned bulk is illegal.Legal Cannabis Products. Adults can legallypurchase beginning or broiled cannabis, cannabis oils and seeds or plantsfrom accustomed retailers. They cannot yet accurately acquirement otherproducts, including edibles, cannabis extracts, and cannabistopicals.Authorized Retailers. Acknowledged cannabis productsare alone awash through retailers accustomed by the bigoted orterritorial governments. Acknowledged cannabis articles accept an excisestamp on the package, the connected cannabis symbol, and healthwarnings. Cannabis articles acquired from any added antecedent areillegal.Provincial/Territorial Differences. Eachprovince and area has its own rules for cannabis, includingthe acknowledged minimum age, area adults can buy it, and area adultscan use it. Municipalities can additionally canyon bylaws to adapt the useof cannabis locally. Control and use in contravention of locallaws is illegal.Travelling. It is actionable to booty cannabisacross the Canadian border, whether advancing into Canada or leaving.This applies to all countries, whether cannabis is acknowledged ornot.Impaired Driving. It is actionable to drive whenimpaired by recreational cannabis or any added drug.
Since the control and use of cannabis alfresco of what the lawallows charcoal illegal, administration can and should await on locallaws, absorb them into their abode behavior andprocedures, and conduct advisers for adventure any illegalconduct in the workplace. Accordingly, the key accomplishments employersshould booty to abode the appulse of amends on theirworkplaces are:
Implement Policies. Administration accept the rightto authorize rules for the recreational use of cannabis in theworkplace in abundant the above way that administration accept the adapted to setrules for the use of booze or tobacco products. In particular,employers may prohibit the use of recreational cannabis at assignment orduring alive hours and can additionally prohibit advisers from attendingwork while impaired. Administration should assay and alter theirworkplace behavior to abode cannabis legalization, impairment,smoke chargeless abode and aroma chargeless abode obligations.Conduct Agent Training. In bike with theintroduction of new behavior directed at recreational cannabis inthe workplace, administration should alternation advisers on the new policiesand their post-legalization abode expectations. Employers,especially those with safety-sensitive workplaces, should alsotrain admiral and managers on issues including signs ofimpairment and abode protocols back an agent is doubtable ordetermined to be broken in the abode by any substance,including recreational cannabis.Understand the Assignment to Accommodate. The linebetween recreational and medical cannabis use is not bleared from alegal perspective. Administration do not accept a assignment to accommodaterecreational cannabis use and can amusement such use in substantiallythe above way as recreational booze burning beneath anemployer’s abode policies. Violation of abode policiesrelated to recreational use of cannabis can aftereffect in progressivediscipline and, in adapted cases, abortion of the employmentrelationship. Administration abide to accept an obligation toaccommodate medical cannabis use back it is assigned by a medicalpractitioner as analysis for a affliction covered by applicablehuman rights law.
The agreeable of this commodity is advised to accommodate a generalguide to the accountable matter. Specialist admonition should be soughtabout your specific circumstances.
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Do you accept a Catechism or Comment?Click actuality to email the AuthorInterested in the abutting Webinar on this Topic?Click actuality to annals your InterestContributorKristin TaylorCassels BrockEmail FirmView WebsiteEvents from this FirmMore from this FirmMore from this AuthorNews About this FirmAuthorsKristin TaylorLaurie JessomeAdrian D. JakibchukJed BlackburnMaria ConstantineStephanie Di FrancescoMore Popular Accompanying Articles on Application and HR from Canada Bill-148 Style Changes Now Advancing To Federal Abode Legislation: An Overview Of Bill C-86CCPartnersNow that we’re all acquainted with the changes to Ontario’s labour and application legislation brought by Liberals beneath Bill 148, Ontario Proposes Legislation To Expedite Planning Approvals For New Aloft Application UsesGoodmans LLPOn December 6, 2018, the Government of Ontario tabled legislation that would, if passed, accord municipalities the ability to achieve by-laws to facilitate new aloft application uses afterwards the charge to comply… Double Bonus: Court Sides With Employer On Benefit Entitlement, Adding AppealsMcCarthy Ttrault LLPEmployers are generally affronted by benefit alms and adding issues back belief abortion decisions and arresting claims for blameworthy dismissal. Enforceability Of Abortion Clauses In Application Contracts Trending Towards Clarity, Or Added Uncertainty?Siskinds LLPIt is a basal assumption of application law in Ontario that advisers assured afterwards account are accepted to be advantaged to accepted law reasonable apprehension of abortion … It’s Not Humbug: Recognizing The Assumption Of Mutual Trust And Confidence In The WorkplaceLawson Lundell LLPToday the adept and assistant accord amid Ebenezer Scrooge and his agent Bob Cratchit appears to our eyes an anachronism.