Key Developments for 2017

Unpaid Wages

An issue that will get further scrutiny in 2017 is the issue of unpaid wages. By this we mean unpaid overtime and payment either for time spent performing work remotely (via smartphone, etc.) or for the time that does not qualify for overtime (as it doesn’t meet the hours threshold), but is in excess of the hours of work specified in either an employment agreement or an employee handbook.

Drugs and the workplace

The use of medicinal marijuana and the legalization of marijuana generally and its impact on workplaces.

Impact of the Changing Workplace Review and legal protections for atypical workers

The impact of the results of the Changing Workplaces Review and legal protections afforded ‘contingent’ or ‘precarious’ workers.

Key Developments for 2016

Ontario “Changing Workplace Review”

Ontario is conducting a review of the changing nature of the workplace and potential revisions to the Employment Standards Act 2000 and the Labour Relations Act 1995. The scheduled public consultations have now concluded. The Reviewers have issued their Interim Report setting out the specific issues for review and the potential amendments under consideration indicating that they intend to issue their final recommendations in Spring 2017. Many Canadian provinces, as well as the Federal government, follow Ontario legislation and common law in respect of employment and labour issues, and may also follow some or all of the recommendations.

Terminations without cause not permitted in Federal sector

Although employment issues for the vast majority of Canadian workers are governed on a province-by-province basis, employees in some sectors (such as interprovincial transport, communications, banking, and airlines) are governed under the Federal Canada Labour Code. In July 2016, the Supreme Court issued a decision reversing an earlier ruling concerning the ability of federally regulated employers to terminate employees without just cause by providing notice or pay in lieu of notice of termination. The Supreme Court’s decision confirms that non-unionized, non-managerial employees with 12 or more months of service effectively have ‘just cause’ protection from dismissal (unless that dismissal was due to lack of work or discontinuance of a business function).

Bill 132: Sexual Violence and Harassment Action Plan

Bill 132 (amendments to the Occupational Health and Safety Act) came into force in September 2016 and requires more stringent standards for workplace investigations and the ability of the Ministry of Labour to order an employer to retain an external investigator.

Expansion of accessibility and accommodation legislation

The phasing-in of the Accessibility for Ontarians with Disabilities Act in Ontario, the continued work in Nova Scotia towards accessibility legislation, and the development of accessibility legislation in the Province of Manitoba is a sign that Canadian jurisdictions will focus on becoming more inclusive of persons with disabilities. These changes include requirements to create and advise employees of support policies, make accessible information required to perform a job, establish a written process to develop individual accommodation and return to work plans, and consider accessibility needs regarding performance management, career development and advancement, and redeployment.

With thanks to Erin Kuzz and Patrick Groom of Sherrard Kuzz LLP for their invaluable collaboration on this update.