Ontario Introduces Civil Cause of Action for Whistleblower Reprisal Against Employees

New Legislation Enacted

A new civil cause of action for reprisal against whistleblowers was introduced as part of the amendments to Ontario’s Securities Act, related to violations under that law. Accordingly, employers have the burden of proving they did not take a reprisal against the employee. If found to have taken a reprisal, the employee may be reinstated to their prior position or receive a remuneration two times what they would have been paid had the reprisal not occurred.

Benefits Available for Chronic Work-Related Mental Stress

New Legislation Enacted

Amendments to the Workplace Safety and Insurance Act, 1997 allowing benefit claims for chronic mental stress and a Policy providing entitlement guidelines came into force on January 1, 2018. The Policy applies to all accidents on or after January 1, 2018, and claims identified in the Policy’s “transitional provisions.” Benefits for chronic mental stress will be available if it is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment. The substantial work-related stressor must be the predominant cause of an appropriate diagnosis made in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) by a qualified regulated health care professional.

The Fair Workplaces, Better Jobs Act, 2017 Became Effective January 1, 2018

New Legislation Enacted

The Fair Workplaces, Better Jobs Act, 2017, which significantly amends Ontario’s labor, employment and occupational law, became effective on January 1, 2018. Employers with operations in Ontario should become familiar with the amendments to monitor and ensure compliance, carefully reviewing independent contractor relationships to avoid new penalties for misclassification, and examining hiring letters, employment contracts, handbooks, plans, policies, procedures, payroll record keeping, and collective agreements to ensure compliance.

Ontario’s Court of Appeal Rules on the Enforceability of Termination Clauses

Precedential Decision by Judiciary or Regulatory Agency

In January 2018, in Nemeth v. Hatch, the Court of Appeal of Ontario confirmed that although it is presumed that on termination an employee is entitled to common law notice, this notice can be displaced when (a) the employment contract provides for minimum entitlements under the Employment Standards Act, 2000 (the ESA), and (b) the parties’ intention to displace common law notice is clearly and unambiguously expressed in the contract. Employers with Canadian employees are highly encouraged to review and update the termination clauses in their agreements with their employees as this will greatly assist in enforcing them upon termination.

Ontario Government Introduces Bill 203, the Pay Transparency Act

Proposed Bill or Initiative

On March 6, 2018, the Ontario government introduced Bill 203, the Pay Transparency Act (PTA). If passed, it will prohibit employers from asking candidates about their compensation history, with few exceptions. It will also require employers to include a range of expected compensation for any publicly advertised job posting, and prepare a pay transparency report, highlighting compensation gaps, if any, based on gender and diversity, to be submitted to the government. The PTA contains anti-reprisal language prohibiting employers from, for example, penalizing employees from making inquiries about compensation or disclosing his or her compensation to another employee.