Legislative developments and rulings from decision-makers brought change to the fore in 2014. We have highlighted below ten of the key developments employers and human resources professionals need to know about in 2015 and beyond.
- FAMILY STATUS ACCOMMODATION
The Federal Court of Appeal’s decision in Canada (Attorney General) v. Johnstone introduced a four-part test for determining whether an employee has established a prima facie case of discrimination on the basis of family status where the issue is accommodation of childcare needs. The decision affirms that family status protections extend only to a parent’s legal obligations, not to personal choices, and that family status accommodation obligations will only arise after the employee has made reasonable efforts to self-accommodate.
- THREE NEW LEAVES OF ABSENCE UNDER THE ONTARIO ESA
Effective October 29, 2014, three new unpaid leaves of absence were added to the Employment Standards Act, 2000 (“ESA”): Family Caregiver Leave (up to 8 weeks), Critically Ill Child Care Leave (up to 37 weeks) and Crime-Related Child Death or Disappearance Leave (up to 52 or 104 weeks), in prescribed circumstances to eligible employees. These new leaves can be used in conjunction with other ESA leaves if the circumstances of the leave qualify for more than one type.
- THE NEW DUTY OF HONESTY
In Bhasin v. Hrynew, the Supreme Court of Canada created a new common law duty of honesty that requires parties not to lie or otherwise knowingly mislead each other about matters directly linked to the performance of a contract. This does not impose a duty of loyalty or of disclosure, and it is separate and distinct from any fiduciary duties that might otherwise exist. A failure to act honestly may give rise to damages.
- CANADA’S ANTI-SPAM LEGISLATION (“CASL”)
Effective July 1, 2014, CASL prohibits the sending of commercial electronic messages (“CEMs”) without the express or implied consent of the recipient. The majority of CEMs require the express consent of the receiving party, which typically requires an affirmative action by the receiver. CEMs must also clearly and prominently provide an unsubscribe mechanism for recipients.
- MENTAL STRESS UNDER THE WSIA
Prior to April 2014, the Workplace Safety and Insurance Act, 1997 (“WSIA”) and Workplace Safety and Insurance Board policy provided entitlement for work-related mental stress: psychotraumatic disability and traumatic mental stress. At that time, traumatic mental stress would only be recognized where it arose as an acute reaction to a sudden and unexpected traumatic event that occurred in the course of employment. However, the Ontario Workplace Safety and Insurance Appeals Tribunal held that these limitations were unconstitutional. While the long-term implications of this decision are currently unclear, one development may be a rise in claims for chronic mental stress that accumulates over time and does not arise from an acute and unexpected event.
- CONFIDENTIALITY OF SETTLEMENT AGREEMENTS
The Ontario Divisional Court upheld an arbitral decision ordering the repayment of settlement monies following a breach of confidentiality by the grievor, Jan Wong. The settlement agreement stipulated that a breach would result in the repayment of settlement funds paid to Ms. Wong by her employer, The Globe and Mail. The Court concluded that the repayment provision contained in the settlement was enforceable, and that upholding the settlement as agreed by the parties was not unconscionable. This helpful decision confirms that where parties agree that settlements must be kept confidential, failure to do so can carry significant consequences.
- PENSION REFORM
Significant pension reforms were introduced in Alberta in 2014 and multiple pension reform bills have been introduced in Ontario. Alberta’s Employment Pension Plans Act is a sweeping overhaul of the province’s pension legislation, and impacts all areas of pension plan design, funding and administration. In Ontario, the Pooled Registered Pension Plans Act, 2014 and the Ontario Retirement Pension Plan Act, 2014 have been introduced to address the establishment of pooled plans and retirement undersavings, respectively.
- DETERMINING INDEPENDENT CONTRACTOR STATUS
The Supreme Court of Canada created a new two-part test for determining whether an individual is an employee or an independent contractor in McCormick v. Fasken Martineau DuMoulin LLP. The test focuses on control and dependency to determine whether an employment relationship exists. The more control exercised over an individual’s workplace life, the greater the individual’s dependency and the more vulnerable the individual will be in the workplace – all of which supports the existence of an employment relationship. The Court’s test is a simple articulation of what is often a very fact-specific issue.
- “COMMONALITY” IN CLASS ACTIONS
In October 2014, the Ontario Court of Appeal dismissed an appeal by certain current and former employees of CIBC World Markets Inc. for certification of a class action for overtime pay. In its decision, the Court of Appeal held that the job functions and duties of the proposed class members relevant to their eligibility for overtime pay could not be addressed without having regard to the individual circumstances of the class members. In short, the variation in job functions and responsibilities among the class members were such that the Court would not be able to determine overtime eligibility on a class-wide basis.
This lack of commonality was fatal to the class action certification.
- ENFORCEABILITY OF TERMINATION PROVISIONS
Employers have been alerted yet again that termination clauses in employment agreements must be carefully drafted in order to ensure their enforceability. The Ontario Superior Court’s decision in Miller v. A.B.M. Canada Inc. addressed a termination provision that ostensibly limited the employee’s termination entitlements to the minimum period of notice or salary in lieu of such notice prescribed by legislation. The Court determined that the provision was void and unenforceable as it did not comply with the ESA. By limiting the pay in lieu of notice to simply salary, the employer excluded both a car allowance and pension contributions that were otherwise owed under the termination provisions of the ESA. As the provision was null and void, a period of reasonable notice was calculated that significantly exceeded the employee’s ESA entitlements.