Ontario Employment Law Evolution - Highlights of 2023 and Forecasts for 2024
**Written by Zura Nakiwoga, Articling Student at Lee Workplace Law
As we step into 2024, it is a good time to consider the shifts and updates in Ontario's employment law landscape. This article outlines some of the significant developments of 2023, as well as offers insights into some of the anticipated legal modifications for the year ahead.
2023 Highlights:
1. Changes to the ESA under Bill 79
Bill 79, the Working for Workers Act, 2023, passed into law on October 26, 2023, and brought with it a number of changes to the Ontario Employment Standards Act (the "ESA"), as well as other employment legislation. Below we have outlined two of the most notable changes:
Group Terminations and Remote Work:
Bill 79 imposed additional obligations on employers under the ESA by updating the group termination provisions to cover remote workers. This means remote workers must be counted when determining if a group termination occurred and will also be entitled to receive the enhanced entitlements in the event of a group termination.
Reservist Leave Expansion:
An expansion of statutory-protected reservist leave unfolded, now encompassing recovery from military-related physical or mental health issues. Concurrently, waiting periods for eligibility were reduced. Employers are encouraged to consider whether their employee handbooks may need to be changed based on this update.
We encourage you to check out our previous blog post, Overview of Ontario's Recent Employment Law Changes: Bill 79 and 149., for more information on the topic.
2. Communicable Diseases Policy
The Workplace Safety Insurance Board introduced a timely "Communicable Diseases" policy, effective from December 1, 2023. This policy provides guidelines for claims related to infectious illnesses, addressing workers' compensation entitlements for diseases contracted in the course of employment.
Employers should be aware that valid claims can arise from work-related communicable illnesses, even if the worker is not immunized. Understanding the factors affecting work-relatedness, such as exposure and control measures, is crucial in determining liability.
3. Canada Labour Code Amendments
Changes to the Canada Labour Code came into force on July 9, 2023, introducing new obligations such as reimbursing work-related expenses within 30 days, disseminating information on employee and employer rights, and ensuring workplace inclusivity, even extending to the provision of clean menstrual products.
For more information on these changes, please check out our prior blog post, Amendments to the federal Canada Labour Code.
4. Naloxone kits in the workplace
Effective June 1, 2023, changes to the Occupational Health and Safety Act (OHSA) under the Working for Workers Act, 2022 mandated certain employers to provide naloxone kits in their workplaces. Naloxone is a drug reversing opioid overdose effects. Naloxone kits must include specific contents, and employers are responsible for ensuring their kits are in good condition and properly stored.
Training on recognizing an opioid overdose, administering naloxone, and understanding related hazards is mandatory for workers near the kits. Employers should only disclose necessary personal information for compliance. For further guidance on this topic, please check out our prior blog post, Naloxone kits in the workplace.
Effective October 1, 2023, the new general minimum wage in Ontario is $16.55 per hour. Employers should ensure their pay practices comply with this minimum wage increase, which is already in effect.
For more information on minimum wage increases across Canada, check out our blog post, Minimum wage "must knows" – updates across Canadian jurisdictions.
6. Canadian citizenship or permanent residency should not be a hiring requirement
The Ontario Court of Appeal has clarified that asking about Canadian citizenship during the hiring process is not permissible. In Imperial Oil Limited v. Haseeb, 2023 ONCA 364, the court ruled that this practice goes against the Ontario Human Rights Code, which protects against discrimination based on citizenship.
This decision emphasizes that employers should not inquire about citizenship or permanent residency during the hiring process, ensuring compliance with human rights legislation. Employers are still allowed to verify eligibility to work in Canada but should do so after extending a conditional job offer to avoid potential human rights violations. For more information on this case, check out our blog post; Canadian citizenship or permanent residency should not be a hiring requirement.
7. Bill S-211 - Fighting Against Forced Labour and Child Labour
Aiming to combat modern slavery, Bill S-211 was passed on May 11, 2023. It imposes stringent requirements on specific entities, including the requirement to file annual reports outlining efforts to prevent forced labor and child labor. Non-compliance by the affected entities risks criminal charges and fines, emphasizing personal liability for directors and officers.
8. Exceptional Notice Periods:
Landmark decisions such as Milwid v. IBM Canada Ltd., 2023 ONCA 702 and Lynch v. Avaya Canada Corporation, 2023 ONCA 696 set a precedent for extended notice periods, 26 months and 30 months, respectively. These instances represent the outcomes for more extraordinary circumstances. Uniquely specialized jobs and exceptionally long tenure, for example, could result in greater notice periods of up to 30 months. To mitigate risks, employers should review contracts to establish enforceable termination clauses limiting entitlements. If long-serving employees lack such clauses, negotiating new ones in exchange for valuable consideration is advisable.
9. Early Termination of Fixed-Term Independent Contractor Agreements:
In Monterosso v. Metro Freightliner Hamilton Inc., 2023 ONCA 413, the Ontario Court of Appeal clarifies the duty of fixed-term independent contractors to mitigate damages upon early termination. This means that they must lessen their damages by seeking and accepting an alternative job unless stated otherwise in their contracts. This is in contrast to fixed-term employees, who prima facie have no duty to mitigate in the even of early termination. We encourage you to check out our previous blog post, Mitigation Duties for Fixed-Term Independent Contractors: A Landmark Decision, for more information on the topic.
10. COVID-19 Vaccination:
The case of Croke v. VuPoint Systems Ltd., 2023 ONSC 1234 sets a precedent, marking a significant milestone where the court found that a non-unionized employee's refusal to get vaccinated could result in the frustration of the employment contract. This decision, based on a third-party vaccination mandate, sets a precedent for incorporating unforeseen events in contract frustration cases related to vaccination policies. We encourage you to check out our previous blog post, Failure to vaccinate found to frustrate contract, for more information on the topic.
11. AODA Compliance Report:
As of December 31, 2023, employers with 20+ workers in Ontario (including full, part-time, and seasonal/contract employees) must have completed and filed their latest accessibility compliance report.
The Compliance Report sets out, among other things, information about whether the organization is compliant with the accessibility requirements under the AODA.
2024 Forecasts:
1. Bill 149 - Working for Workers Four Act, 2023
The proposed Bill 149 introduces substantial changes to the ESA. Noteworthy provisions include the prohibition of "Canadian experience" requirements, mandatory pay transparency, and the necessity for employers to disclose artificial intelligence usage in hiring processes. We encourage you to check out our previous blog post, Overview of Ontario's Recent Employment Law Changes: Bill 79 and 149., for more information on the topic.
2. Licensing of Temporary Help Agencies (THAs) and Recruiters
Ontario's Working for Workers Act, 2021 introduced a licensing framework for THAs and recruiters. Initially effective on July 1, 2023, the deadline was extended to July 1, 2024, granting an extra six months for applications. Despite the extension, employers using THAs or recruiters are warned to check licensing status, with potential consequences for operating without one.
Key points include a transition period until July 1, 2024, basic requirements for a valid license, an online application process with fees, penalties for violations post-July 1, 2024, and potential employee entitlements if employment ends due to licensing issues.
For more information on this, check out our blog post: New licensing requirements for temporary help agencies and recruiters.
3. Disconnecting from Work Policy and Electronic Monitoring Policy
Employers who experienced growth in their workforce over the last year may now be required to establish a written disconnecting from work policy under the ESA.
Employers with 25+ employees in Ontario as of January 1, 2024 must have a written policy on disconnecting from work in place before March 1, 2024.
Likewise, employers with 25+ employees in Ontario as of January 1, 2024, will also need to ensure they have a written policy on electronic monitoring of employees in place before March 1, 2024.
For more information on disconnecting from work policies, check out our blog post: What to include in a disconnecting from work policy?
Conclusion
Reflecting on the dynamic landscape of Ontario's employment law in 2023 reveals significant highlights that will guide the path ahead. Notable changes, ranging from amendments to the ESA and impactful court decisions to emerging legislations like Bill S-211, have brought about substantial shifts in the legal terrain.
As we anticipate 2024, the introduction of proposed legislations such as Bill 149 and the establishment of a licensing framework for THAs signify a continued evolution. Navigating these complexities, both employers and employees are urged to prioritize seeking legal advice, ensuring compliance, and effectively mitigating risks in the ever-evolving employment law landscape.
