2022 saw significant shifts in Canadian labor and employment law across multiple provinces. This article summarizes 25 key changes impacting workplaces nationwide, offering a comprehensive overview of landmark court decisions and legislative amendments. From the upholding of workplace vaccination policies to the banning of non-compete agreements in Ontario, the legal landscape experienced substantial evolution. Key rulings addressed issues such as reasonable notice periods, employee monitoring, unionization processes, and the interpretation of employment contracts. This review provides a valuable resource for employers and employees alike, navigating the complexities of updated legislation and judicial precedents.These changes span various areas, including employee classification, termination procedures, collective bargaining, and human rights. The impact extends to both federally and provincially regulated businesses, highlighting the dynamic nature of labor law in Canada. This article analyzes court decisions from provinces such as Ontario, British Columbia, and Alberta, revealing diverse interpretations and trends. The information presented aims to clarify the legal implications of these developments, fostering a better understanding of employee rights and employer obligations within the evolving Canadian workplace environment.
Pros And Cons
- Supported the implementation of vaccination policies in the workplace to stop the spread of COVID-19.
- Acceptable if reasonable accommodations were offered and compliant with collective agreements.
- Minimal interference with employee privacy rights.
Read more: Top 5 Wooden Piano Benches
Workplace Vaccination Policies and COVID-19
In 2022, Ontario and British Columbia arbitration awards upheld workplace vaccination policies implemented to curb the spread of COVID-19. These decisions emphasized the employer's duty to provide a safe workplace and balanced employee rights with the need for health and safety measures.
The rulings consistently supported vaccination mandates, provided employers offered reasonable accommodations as per human rights legislation. Arbitrators weighed minimal privacy intrusion against the employer's right to reasonable workplace regulations and their obligation to worker safety.
Ban on Non-Competition Agreements in Ontario
Ontario's Bill 27, the Working for Workers Act 2021, outlawed non-compete agreements for most employees, effective October 25, 2021. Exceptions exist for business sales and executive employees.
The Superior Court of Justice clarified that the ban doesn't apply retroactively to agreements signed before October 25, 2021. However, even pre-existing agreements are only enforceable if they are deemed fair and reasonable in all material aspects under common law.
Reasonable Notice Periods and Exceptional Circumstances
The Ontario Court of Appeal upheld a 26-month reasonable notice award, exceeding the usual 24-month high-end for long-term employees, citing exceptional circumstances. This decision creates ambiguity concerning the limits of reasonable notice.
The court's reasoning highlights the complexities of determining reasonable notice. While factors like seniority and difficulty finding new employment are considered, they might already be accounted for within the established 24-month guideline.
Electronic Monitoring Policies in Ontario
Ontario's Working for Workers Act 2022 mandated written policies on electronic employee monitoring for certain employers, effective October 11, 2022. Employers were required to provide copies to employees by November 10, 2022.
This amendment aims to increase transparency and worker awareness regarding electronic monitoring practices in the workplace.
Naloxone Kits in Ontario Workplaces
Another amendment to Ontario's Occupational Health and Safety Act (OHSA) requires certain employers to provide and maintain naloxone kits, effective June 1, 2023. This is in response to the potential for opioid overdoses in the workplace.
The regulation aims to improve workplace safety and provide immediate assistance in the event of an opioid-related emergency.
Defining Employee Status in British Columbia
The British Columbia Court of Appeal rejected the use of rigid legal tests to determine employee status for employment standards purposes, favoring a contextual approach. This emphasizes a holistic assessment of the working relationship.
The court highlighted a non-exhaustive list of factors, including equipment provision, hiring helpers, financial risk, and investment responsibility, to determine whether an individual is operating as an independent contractor or an employee.
Enforceability of Common Law Non-Competition Clauses in Ontario
The Ontario Court of Appeal ruled that vague or overly broad common law non-competition clauses are unenforceable. This highlights the need for clear and reasonable restrictions.
The court's decision emphasizes the importance of precise wording and reasonable scope in non-compete agreements to ensure enforceability.
Jurisdiction over Union Member Claims Against Third Parties
The Ontario Court of Appeal clarified that if a union member's claim against a third party falls outside the collective bargaining agreement, the court retains jurisdiction, not an arbitrator.
This ruling affects the handling of disputes where union members sue third parties for issues unrelated to their employment contract or the collective agreement.
Automatic Card Check Union Certification in British Columbia
British Columbia's Bill 10 introduced an automatic card check union certification process, requiring at least 55% worker signatures. This streamlines unionization in certain circumstances.
This change represents a significant shift in British Columbia's labor relations, making union certification easier in specified situations.
Employment Termination During CCAA Proceedings
The Ontario Court of Appeal addressed employment termination during Companies' Creditors Arrangement Act (CCAA) proceedings. It clarified that dismissal during CCAA proceedings doesn't prevent court-ordered release of employee claims.
The court's interpretation of CCAA procedures impacts how employment terminations are handled within bankruptcy or restructuring processes, particularly regarding employee claims.
Unclear Termination Clauses in Employment Contracts
The Alberta Court of Appeal found ambiguous termination clauses in standard employment contracts insufficient. This highlights the importance of clear, unambiguous contract language.
The ruling emphasizes the need for precise wording in termination clauses to avoid disputes over common law reasonable notice.
Sexual Harassment as a Separate Tort in Ontario
The Ontario Superior Court of Justice ruled that sexual harassment is not a separate tort in Ontario. Employers cannot be held vicariously liable for employee-on-employee harassment.
However, management's failure to act on known harassment can result in personal liability for creating a hostile work environment, violating an employee's rights under the Human Rights Code.
Employee Response to Unilateral Pay Cuts
The Alberta Court of Appeal stated that employees refusing unilateral pay cuts must act promptly to avoid jeopardizing constructive dismissal claims. Delaying action can be interpreted as acceptance.
This highlights the importance of immediate action by employees when faced with unwanted changes to their compensation.
Invalidity of Employment Agreement Termination Provisions
Ontario's Superior Court of Justice ruled that if any termination provision in an employment agreement violates the Employment Standards Act (ESA) 2000, all termination provisions become invalid.
This decision underscores the importance of ensuring all aspects of an employment agreement comply with the ESA, even if a severability clause exists.
Employer Discretion in Bonus Provisions
The Ontario Court of Appeal clarified that while bonus clauses might be discretionary, employers must exercise this discretion fairly and reasonably. Subjective decisions without clear criteria can be challenged.
Employers should consider individual performance and consistency across employees when determining bonus eligibility and amounts to avoid legal challenges.
Prohibition of Wage-Fixing and No-Poach Agreements
An amendment to Canada's Competition Act, effective June 23, 2023, prohibits wage-fixing and no-poach agreements between unaffiliated employers. This impacts all federally and provincially regulated businesses.
This change aims to promote fair competition and prevent anti-competitive practices in the labor market.
Ontario's Bill 28 and its Repeal
Ontario's Bill 28, aimed at preventing a teacher's strike, was controversially introduced and quickly repealed. It demonstrated a significant attempt to override collective bargaining processes.
The swift repeal highlights the political and legal complexities surrounding labor relations and government intervention in collective bargaining.
Concurrent Jurisdiction over Human Rights Issues in Unionized Workplaces
The Human Rights Tribunal of Ontario determined it has concurrent jurisdiction with arbitrators over human rights issues in unionized workplaces. Employees can choose which avenue to pursue.
This decision underscores the employee's choice in resolving human rights complaints, either through arbitration under the collective agreement or through the human rights tribunal.
Duty to Mitigate Damages for Wrongfully Terminated Employees
The Ontario Court of Appeal clarified the duty of wrongfully terminated employees to mitigate damages. This includes promptly searching for similar employment and not unduly delaying the job search.
The ruling provides further guidance on what constitutes reasonable efforts to mitigate losses following wrongful dismissal.
New Paid Medical Leave Provisions in the Canada Labour Code
The Canada Labour Code introduced new paid medical leave provisions (up to 10 days per year), effective December 1, 2022, for federally regulated private sector employees.
The number of paid days varies depending on length of continuous employment. This new entitlement enhances employee protections and ensures access to paid time off for medical reasons.
Standard of Review for Administrative Decisions in Ontario
The Ontario Court of Appeal emphasized the application of Vavilov principles when reviewing administrative decisions, including those of the Ontario Labour Relations Board. Judicial deference is key.
The Court stressed the importance of judicial restraint and respect for the specialized knowledge of administrative decision-makers, intervening only when necessary to uphold the legality, reasonableness, and fairness of decisions.
Increased EI Sickness Benefits and Unpaid Medical Leave
Employment Insurance (EI) sickness benefits were permanently increased to 26 weeks, and the maximum unpaid medical leave for federally regulated employees rose to 27 weeks, both effective December 18, 2022.
These changes provide extended support to ill employees, aligning with the expanded EI sickness benefits.
CERB Payments and Wrongful Termination Damages
The British Columbia Court of Appeal ruled that Canada Emergency Response Benefit (CERB) payments shouldn't be deducted from wrongful dismissal damage awards.
This ruling brings consistency to the treatment of CERB payments in wrongful dismissal cases, preventing double-dipping and ensuring fair compensation.
Invalidation of Ontario's Bill 124
Ontario's Bill 124, limiting public sector salary increases, was deemed invalid by the Ontario Superior Court of Justice for infringing on freedom of association. The government appealed.
The ruling highlights significant challenges to wage control measures within the context of constitutional rights and collective bargaining.
