Ontario Court of Appeal: Decision on Evaluating Enforceability of Termination Provisions

Precedential Decision by Judiciary or Regulatory Agency

On June 17, 2020, the Ontario Court of Appeal rendered a decision pertaining to the enforceability of termination provisions in employment contracts, providing that the proper method for determining whether a termination clause in an employment agreement is enforceable is to analyze the agreement as a whole rather than on a piecemeal basis. If any termination provision in the agreement is contrary to the requirements of the Employment Standards Act, 2000, all termination provisions in the contract will be considered unenforceable, regardless of the existence of a severability clause, which cannot be utilized to sever the offending portion of the termination provisions.

Provinces Announce Plans to Gradually Ease COVID-19 Restrictions and Reopen

New Regulation or Official Guidance

In Canada, the easing of restrictions due to the COVID-19 pandemic is determined by each individual province or territory. In April and May 2020, a number of provincial governments (British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Newfoundland and Labrador, New Brunswick, Prince Edward Island) announced how they plan to gradually ease restrictions with a view to eventually fully reopening their provinces.

New Work Place Harassment and Violence Prevention Regime for Federally Regulated Employers

New Regulation or Official Guidance

On June 24, 2020, the federal government published Work Place Harassment and Violence Regulations (Regulations), which set out the requirements that federally-regulated employers will be required to meet in order to satisfy their obligations under the Canada Labour Code (CLC) to investigate, record, report, prevent and provide training with respect to work place harassment and violence, including sexual harassment and sexual violence. The Regulations support Bill C-65, An Act to amend the Canada Labor Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 (Bill 65), which received Royal Assent on October 25, 2018. On June 22, 2020, the federal government announced that both Bill C-65 and the Regulation will come into force on January 1, 2021.

Ontario: New Regulation under Employment Standards Act Favorable to Employers

New Regulation or Official Guidance

On May 29, 2020, the government of Ontario filed Ontario Regulation 228/20 (Regulation) under the Employment Standards Act, 2000 (ESA). The Regulation amends layoff and constructive dismissal rules under the ESA, and in most cases, eliminates temporary layoffs and the risk of a constructive dismissal claim under the statute for a defined “COVID-19 period,” during which many employers in Ontario have had to close or reduce operations. This Regulation does not apply to employees in unionized workplaces who will continue to be subject to the ESA’s temporary layoff rules. A number of Canadian jurisdictions have amended their employment standards legislation to extend the period of temporary layoffs as a result of the COVID-19 pandemic.

If Approved, Proposed Bill Would Amend CEWS and CERB

Proposed Bill or Initiative

On June 10, 2020, the federal government introduced Bill C-17, An Act respecting additional COVID-19 measures, for first reading. If passed in its current form, Bill C-17 would, among other things, make changes to the Canada Emergency Wage Subsidy (CEWS), a 75% wage subsidy program to encourage employers to retain their employees during the COVID-19 crisis, and to the Canada Emergency Response Benefit (CERB), a taxable benefit of $2,000 every four weeks for up to four months for eligible workers who have lost their income due to the COVID-19 crisis. Changes to the CEWS would include extending its duration by an additional 12 weeks to August 29, 2020, extending eligibility for the CEWS to several groups, and other amendments to ensure that the CEWS continues to meet its objectives. Changes to CERB would include allowing payments to be made in two week increments, establishing circumstances in which employees will not be eligible for CERB, and subjecting applicants to penalties in specific circumstances.