Significant Amendments to Federal Canada Labour Code, Effective as of July 29, 2019 and September 1, 2019

New Legislation Enacted

With some Canada Labour Code (CLC) amendments in Bill C-44, the Budget Implementation Act, 2017, No. 1 (Bill 44) having come into force in 2017 and earlier in 2019, some additional amendments in Bill C-44 came into force as of July 29, 2019. They relate to, among other things, the employee complaint procedure, the transfer of the powers, duties and functions of appeals officers, and the transfer of responsibility for unjust dismissal complaints to the CIRB. Bill C-63, the Budget Implementation Act, 2017, No. 2 (Bill C-63) and Bill C-86, the Budget Implementation Act, 2018, No. 2 (Bill C-86) came into force on September 1, 2019. Key amendments to the CLC in Bill C-63 relate to the flexibility of work arrangements, overtime, shift changes, leaves of absence, and vacation. Key amendments to the CLC in Bill C-86 relate to notice of work schedule, breaks, rest periods, vacation, minimum length of service requirement, leaves of absence, and continuity of employment.

Federal Accessible Canada Act Proclaimed in Force as of July 11, 2019

New Legislation Enacted

Bill C-81, An Act to Ensure a Barrier-free Canada was proclaimed in force as of July 11, 2019, thereby enacting the Accessible Canada Act (ACA), which applies to federally-regulated organizations in the private and public sectors. The stated purpose of the ACA is to remove barriers for persons with disabilities in relation to employment, among other things. Organizations subject to the ACA are required to prepare and publish accessibility plans and establish processes for receiving and addressing feedback with regard to those plans.

Bill 2, An Act to Make Alberta Open for Business, Amends Alberta’s Employment Standards Code and Labour Relations Code

New Legislation Enacted

Alberta’s Bill 2, An Act to Make Alberta Open for Business (Bill 2), received Royal Assent on July 18, 2019. Bill 2 made amendments to Alberta’s Employment Standards Code relating to holiday pay and overtime agreements that came into force on September 1, 2019. It also made amendments to Alberta’s Labour Relations Code relating to union certification votes and marshalling proceedings that came into force on Royal Assent. Changes to employee supports, also included in Bill 2, will be coming into force on October 1, 2019.

Substance Not Form Will Determine Independent Contractor or Employee Status

Precedential Decision by Judiciary or Regulatory Agency

The Supreme Court of Canada recently held that the parties’ agreement (in this case, a franchise agreement) will not be determinative in determining employee or independent contractor status, and that a highly contextual and fact-specific inquiry into the actual and substantive nature of the parties’ relationship must be conducted.

Incentive Plan Compensation Documentation During Reasonable Notice Period

Precedential Decision by Judiciary or Regulatory Agency

In a recent decision, the Ontario Court of Appeal (OCA) considered whether a terminated employee was entitled to damages in lieu of a lost opportunity to earn incentive plan compensation during his or her reasonable notice period. The OCA confirmed that when an employer terminates an employee without cause, the employer is liable to the employee for damages for breach of contract, including for, among other things, the loss of bonuses or incentive payments that are an integral part of the employee’s compensation. However, the court went on to note that if the incentive compensation plan contains a term that clearly and unambiguously removes the employee’s right to these damages, and if the term is brought to the attention of the employee, the employee will be precluded from earning incentive plan compensation during the reasonable notice period.