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Ontario Government Conducting Mining Industry Inspection Blitz

From October 2, 2017 to November 30, 2017, Ontario’s Ministry of Labour (“MOL”) will be conducting workplace inspection blitzes in mines and mining plants. In recognition of the fact that October is Global Ergonomics Month, these blitzes will focus on workplace measures relating to musculoskeletal disorders (“MSDs”). However, inspectors will also be assessing the risk … Continue reading

Local doesn’t make the grade: The need to accommodate employees with anxiety when writing qualifying exams

John Betts, (the “Applicant”) was a carpenter and member of the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the “Union”). While the parties were not engaged in a traditional employer-employee relationship, the Applicant was protected from discrimination by the employment related sanctions of the Ontario Human Rights Code (the “Code”). Like most … Continue reading

Proposed amendments to the Ontario Human Rights Code include new prohibited grounds of discrimination

On October 4, 2017 Bill 164, The Human Rights Code Amendment Act, 2017 was introduced into the Ontario Legislative Assembly and passed First Reading the same day. If enacted, it would expand the prohibited grounds of discrimination in the Ontario Human Rights Code (the “Code”) to include immigration status; genetic characteristics; police records; and social … Continue reading

Working Notice Not Appropriate for Medical Leaves of Absence

In McLeod v. 1274458 Ontario Inc. (“McLeod”), the Ontario Superior Court confirmed that working notice is not appropriate when an employee is on an unpaid leave of absence for medical reasons. Generally, providing working notice allows employers to avoid having to provide pay in lieu of notice. Instead, employees are given advance notice of their … Continue reading

Termination and Flawed Performance Management Leads to Aggravated Damages Award

Performance management is always a challenge for employers.  Termination for cause on the basis of poor performance is trickier.  The recent decision of Cottrill v. Utopia Day Spas and Salons Ltd., 2017 BCSC 704 (“Cottrill”) is a good reminder of the importance of proactive and proper performance management, especially for underperforming employees. Ms. Cottrill was … Continue reading

Ontario Bill 148, as amended, cuts back on proposals authorizing the Board to review the structure of bargaining units

  Ontario is one of a few Canadian jurisdictions that does not give its labour board the general authority to review, consolidate and otherwise amend bargaining units.  In the Changing Workplaces Review Final Report, the special advisors recommended giving the Ontario Labour Relations Board (“Board”) the power to modify bargaining unit structures, if the Board … Continue reading

Proposed amendments to Ontario Bill 148 address security and confidentiality of employee lists disclosed during union campaigns 

The Fair Workplaces, Better Jobs Act, 2017 (Bill 148), introduced on June 1, 2017, proposed adding a new section 6.1 to provisions in the Ontario Labour Relations Act, 1995 (“LRA”) that address union campaigns to establish bargaining rights.  Headed “Establishment of Bargaining Rights by Certification”, the new section (which does not apply to the construction … Continue reading

Amendments to the Ontario Bill 148 include new entitlement to Domestic or Sexual Violence Leave

The version of Ontario Bill 148 introduced by Premier Wynne and Labour Minister Flynn in June included significant changes to the personal emergency leave (“PEL”) entitlement under the current Employment Standards Act, 2000 (“ESA”).  It eliminated the 50+ employee eligibility threshold, entitling all employees to 2 paid and 8 unpaid PEL days each calendar year.  … Continue reading

Update on Ontario Bill 148: Amendments to “equal pay for equal work” provisions provide some guidance for employers 

The Employment Standards Act, 2000 contemplates equal pay between the sexes. As we reported in June, Ontario Bill 148 proposes adding “new equal pay for equal work” provisions that mandate paying casual, part-time, temporary, and seasonal employees be paid the at the same rate as regular full-time employees who perform the same job for the … Continue reading

“Scheduling” provisions amended as the Ontario Bill 148 advances to Second Reading

  Scheduling of work under the Employment Standards Act, 2000 (“ESA”) is one of several sections in Bill 148 affected by recent amendments. Currently, the ESA does not regulate an employer’s right to schedule work, aside from providing that an employee who attends a scheduled shift must receive at least three hours’ pay, even if … Continue reading

Status Update on Bill 148: The Overhaul of Ontario’s Labour and Employment Laws Continues

The Fair Workplaces, Better Jobs Act, 2017 (Bill 148) is the Ontario government’s blueprint for overhauling the province’s labour and employment laws.  Incorporating union-friendly changes to the Labour Relations Act, 1995 (LRA) and enhanced employee entitlements under the Employment Standards Act, 2000 (ESA), Bill 148 represents a wide swing to the left.  It passed First … Continue reading

Non-Solicitation Provisions: Go Narrow or Risk Unenforceability

  Employers need to protect their customer base.  Employees need to retain control and autonomy over their lives.  The potential conflict between basic tenets of the employer-employee relationship are readily apparent in Donaldson Travel Inc v Murphy,  2016 ONCA 649 [Donaldson Travel].   In that recent decision, Ontario Court of Appeal emphasizes the difference between non-solicit … Continue reading

I’m sick of this!  But not of that:   Can you fire an employee for working another job while on sick leave?

An employee may be disciplined (including fired) for fraudulent sick leave, but does this include an employee working another job while on sick leave?  Possibly, though employers should exercise caution before pulling the trigger. In United Food & Commercial Workers, Local 1518 (Sidhu Grievance) v. Sobeys West. Inc., [2016] B.C.C.A.A.A. No. 148 [“Sidhu”], the grievor, … Continue reading

Employers may be justified in requesting an independent medical examination as part of the procedural aspect of the duty to accommodate

  Jurisprudence on independent medical examinations (IME) in the context of the employer’s duty to accommodate is sparse.  The Ontario Superior Court of Justice recently provided much-needed guidance in Bottiglia v Ottawa Catholic School Board.  In Bottiglia, the Court held that in certain circumstances, an employer may be justified in requesting an IME as part … Continue reading

Employer ordered to pay $141,000 for tort of harassment and intentional infliction of mental suffering at the workplace

In a previous post on this blog, we discussed how an employer’s non-compliance with workplace harassment and violence provisions of the Occupational Health and Safety Act resulted in a $70,000 fine ordered against the employer. Recently, the Superior Court reminded employers of the importance of ensuring that a harassment-free workplace is maintained and that all … Continue reading

Now you see it (now you don’t), or do you?  Can an employer retract an offer of employment?

The retraction of an accepted offer of employment can create significant legal challenges for an employer.  The BC Supreme Court recently reaffirmed that, absent an express contractual provision to the contrary or just cause, a pre-employment retraction of an accepted offer of employment constitutes termination of employment entitling the individual to reasonable notice or damages … Continue reading

Mitigation Income and Wrongful Dismissal Damages – The Court of Appeal Muddies the Waters

The Wrongful Dismissal – What Happened? Esther Brake worked for McDonald’s for over twenty-five years, first in Cornerbrook, Newfoundland, and then as a restaurant manager in Ottawa. She had received nothing but excellent reviews for years, but in 2011 she was suddenly told her performance was inadequate and that she had two options: accept a … Continue reading

Toronto firefighters in hot water over vulgar tweets

Two Toronto firefighters found themselves fighting to get their jobs back after some vulgar tweets on their personal Twitter accounts landed them in hot water. The cases of Matt Bowman and Lawaun Edwards demonstrate the importance of ensuring employees understand the reach of their social media accounts. After a National Post article exposed both firefighters … Continue reading

ContractorCheck Canada App

Employee or contractor? The ContractorCheck Canada application (App) is a practical tool developed by the Norton Rose Fulbright employment and labour team. It is designed to help employers accurately determine the status of their workforces and whether they should be considered contractors or employees. Defining employees versus contractors can be sometimes challenging; improperly classifying them … Continue reading

Application for interlocutory injunction preventing implementation of random drug and alcohol testing of TTC employees denied

  In Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078, Amalgamated Transit Union, Local 113 (ATU) unsuccessfully argued that the implementation of the random drug and alcohol testing of its members should be withheld until the conclusion of the main arbitration hearing addressing the validity of the new drug and alcohol … Continue reading

Misclassification of Workers under the Fair Workplaces, Better Jobs Act, 2017 (Bill 148)

On May 23, 2017, the Ontario Government released The Changing Workplaces Review: An Agenda for Workplace Rights Final Report.  The report reviewed numerous aspects of our workforce and the legislation that applies to it.  A portion of the report included a statistic that found a significant increase in the number of individuals that are self-employed … Continue reading

Dismissed employee failed to mitigate by choosing retraining over applying for comparable re-employment

In Benjamin v. Cascades Canada ULC, the Ontario Superior Court of Justice reviewed the law surrounding an employee’s duty to mitigate their common law reasonable notice damages arising from wrongful dismissal. In such cases, the onus is on the employer to establish a failure to mitigate, and that onus requires the employer to establish that … Continue reading
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