Back by popular demand, we highlight the ten most significant developments in Canadian labour and employment law in 2015:

  1. Supreme Court of Canada determines “right to strike” is protected under s. 2(d) of the Charter.  In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court of Canada confirmed that legislation limiting the right to strike is unconstitutional unless its limits are reasonable and justified in a free and democratic society.  This case establishes a relatively high threshold for justifying laws that limit the right to strike.
  2. Supreme Court of Canada clarifies the legal test for constructive dismissal.  In Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court of Canada confirmed that constructive dismissals arise in two primary forms, including: (1) a single, unilateral act of the employer that breaches an essential term of the contract, or (2) a series of employer acts that, taken together, demonstrate the employer intended to no longer be bound by the contract.  Under the first category, a constructive dismissal may arise when an employee is placed on paid non-disciplinary administrative leave, and such action is not exercised in a proportionate and reasonable manner.
  3. Without Cause Dismissals Permitted in the federal sector.  In Wilson v. Atomic Energy of Canada Limited, the Federal Court of Appeal determined that employees can be dismissed without cause under the Canada Labour Code.  Leave to appeal to the Supreme Court of Canada has been granted in this case.
  4. Substantial changes to the Ontario Employment Standards Act come into force. Many significant changes to Ontario’s Employment Standards Act came into force in 2015 as a result of Bill 18, including: (i) the elimination of a $10,000 limit on orders for unpaid wages; (ii) increasing the limitation period for unpaid wages claims from six months to two years, and (iii) adopting a system of automatic increases to minimum wage, based on the consumer price index.
  5. Ontario Superior Court adopts federal test for family status discrimination. In Partridge v. Botony Dental Corporation (upheld on appeal), the Ontario Superior Court adopted the federal test for family status discrimination (a.k.a. the “Johnstone test”) under the Ontario Human Rights Code.  This test is generally viewed as more favourable to individuals seeking accommodation than previous tests.
  6. Metron Construction’s project manager was convicted of criminal negligence causing death and bodily harm.  In R. v Kazenelson, a construction project manager was convicted under the Criminal Code after a swing stage collapsed, killing four workers and seriously injuring another.  At the sentencing hearing on October 16, 2015, the court confirmed that the project manager would serve a term of incarceration. Sentencing details will be released in 2016.  This conviction was closely related to the much-reported case of R. v. Metron Construction–the first Ontario case in which a company was held responsible for a worker’s death under Criminal Code.
  7. Duty of honest contractual performance is applied to employment contract negotiations.  In Antunes v. Limen Structures Ltd., the Ontario Superior Court applied the “duty of honest contractual performance” (confirmed by the Supreme Court of Canada in 2014) in an employment context.  In this case, the plaintiff decided to leave his occupation as an independent contractor in the construction industry to accept employment with a construction employer.  At the time of hire, the plaintiff was told that the company was worth $10 million, and was promised $500,000 in shares within one year of commencing employment.  The employee was never provided with the promised shares and the company was not worth $10 million.  The employer was ultimately ordered to pay the employee eight months’ notice, and an additional $500,000 for, among other things, misrepresenting the value of the company when the plaintiff was hired.
  8. Human rights damages for injury to dignity rise and fall significantly. In OPT v. Presteve Foods Ltd., the Ontario Human Rights Tribunal issued its highest award yet for injury to dignity, feelings and self-respect, in the amount of $150,000.  On the other hand, in Kelly v University of British Columbia, the British Columbia Superior Court overturned an award of $75,000 for injury to dignity–the British Columbia Human Rights Tribunal’s highest award to date–finding it was unjustifiably high.
  9. Ontario introduces significant amendments to employment legislation:
    • On October 27, 2015, the Ontario Legislature introduced legislation as part of its action plan to stop sexual violence and harassment.  Bill 132An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, proposes changes to various statutes,aimed at making workplaces, university campuses, and communities safer, while recognizing the needs of survivors of sexual violence and harassment.
    • On December 10, 2015, the Ontario Legislature passed Bill 109, theEmployment and Labour Statute Law Amendment Act, 2015, adding (among other things) a new offence to the Workplace Safety and Insurance Act that prohibits employers from acting with the intention of discouraging or preventing a worker from filing a WSIB claim, or inducing the worker to withdraw or abandon a claim for benefits.
    • Also on December 10, 2015, the Ontario Legislature’s Bill 12An Act to Amend the Employment Standards Act, 2000 With Respect to Tips and Other Gratuities, received Royal Assent, prohibiting employers from withholding, making deductions from, or collecting tips or other gratuities from employees, unless authorized to do so under the Employment Standards Act and its regulations.
  10. Significant changes to Part I of the Canada Labour Code (which Justin Trudeau intends to repeal).  In June of 2015, Bill C-525 came into force, making secret ballot votes mandatory in the union certification process under the Canada Labour Code.  That same month, the federal government passed Bill C-377, which would require unions to publically disclose sensitive financial information within six months of each year-end, starting in 2016.  On December 21, 2015, the Liberal government announced it was waiving the financial requirements established under Bill C-377, and it is expected that both Bill C-525 and Bill C-377 will be repealed by the Liberals in 2016.