Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2019 e top 10 of 2018 Key employment and labour law developments have set the tone for 2019 BY GEORGE VASSOS AND RHONDA LEVY 2018 SAW MANY developments in Ca- nadian labour and employment law which significantly changed the landscape for em- ployers, both during the year and for 2019. Here are 10 of the most notable things that happened across the country. Canada first major world economy to legalize recreational cannabis federal- ly. On Oct. 17, 2018, Canada's Cannabis Act made it the first major economy to establish a legal framework federally for recreational cannabis use by adults. Legalization of rec- reational cannabis does not provide employ- ees with a right to use it in the workplace and employers are entitled to establish poli- cies prohibiting use and possession in the workplace. Cannabis for medical purposes continues to be regulated under the Access to Cannabis for Medical Purposes Regula- tions. Under federal and provincial human rights legislation, employers have a duty to accommodate cannabis use by employees medically authorized to do so and those ad- dicted, unless accommodation creates un- due hardship to the employer. Legislative initiatives and the #MeToo movement made sexual harassment in the workplace a top priority for em- ployers, while human rights tribunals increased damages in sexual harass- ment cases. 2018 saw heightened aware- ness among employers to implement strict policies and procedures regarding sexual harassment, to provide comprehensive anti- harassment training, and to conduct thor- ough investigations of complaints. Legisla- tors amended several statutes by elevating employee rights when they experience sex- ual harassment and work-related stressors (Ontario's Occupational Health and Safety Act and Workplace Safety and Insurance Act, 1997). Bill C-65, An Act to amend the Canada Labour Code, proposes to re- quire federal employers to make substantial changes in addressing workplace violence and harassment. Harassment is recognized as a tort upon which a civil action may be based, and an employer is required to pay significant moral damages for a poorly man- aged investigation of a sexual harassment complaint. We saw an increased volume of employee complaints emboldened by the #MeToo movement. Finally, we witnessed an upward trend in damages for sexual ha- rassment in human rights cases (see the On- tario human rights cases of A.B. v. Joe Singer Shoes Ltd. and G.M. v. X Tattoo Parlour. e Ontario Court of Appeal provided guidance on maximizing enforceability of termination clauses. In 2018, the On- tario Court of Appeal, in Nemeth v. Hatch and Amberber v. IBM Canada, provided guidance to employers regarding how to draft termination clauses to maximize the likelihood of enforceability. e court con- firmed that although it is presumed that on termination an employee is entitled to com- mon law notice, this notice can be displaced when (a) the employment contract provides for minimum entitlements under the Em- ployment Standards Act, 2000, and (b) the parties' intention to displace common law notice is clearly and unambiguously ex- pressed in the contract. Ontario made major reforms to work- place statutes only to substantially re- verse many. On Nov. 27, 2017, e Fair Workplaces Better Jobs Act, 2017 (Bill 148) significantly amended Ontario's Employ- ment Standards Act, 2000 (ESA), Labour Relations Act, 1995 (LRA) and Occupa- tional Health and Safety Act. Most Bill 148 amendments took effect by April 1, 2018, with remaining scheduled to take effect Jan. 1, 2019. However, on Nov. 21, Bill 47, Mak- ing Ontario Open for Business Act, ef- fectively reversed certain Bill 148 changes. With one exception, Bill 47's changes came into force Jan. 1, 2019, and to the LRA Nov. 21, 2018. Major amendments to Alberta, Que- bec and British Columbia workplace legislation. Alberta's Bill 17, the Fair and Family-friendly Workplaces Act, received Royal Assent in 2017 with effect on Jan. 1, 2018, amending Alberta's Employment Standards Code and Labour Relations Code. Alberta's Bill 30, An Act to Protect the Health and Well-being of Working Albertans received Royal Assent in 2017 with effect on June 1, 2018. Bill 30 amended Alberta's occupational health and safety and workers' compensation statutes. Quebec made amendments to its Act re- specting labour standards through Bill 176, An Act to amend the act respecting labour standards and other legislative provisions mainly to facilitate family-work balance, with Royal Assent June 12, 2018. Many amendments came into force that day, but others as late as Jan. 1, 2019. British Columbia's Bill 6, Employment Standards Amendment Act, 2018 received Royal Assent and was in force May 17, 2018. Ontario introduced Bill 203, Pay Trans- parency Act — then delayed its coming into force date indefinitely. In April 2018, Ontario passed Bill 203, An Act Respect- ing Transparency of Pay in Employment, which was to come into force Jan. 1, 2019. On Nov. 15, Bill 57, Restoring Trust, Trans- parency and Accountability Act, 2018 was introduced with Royal Assent Dec. 6. It amended the Act Respecting Transparen- cy by changing the effective date from Jan. 1, 2019 "to a day to be named by proclamation of the Lieutenant Governor." e purpose of Bill 203 is to "increase transparency in hiring processes and give women more informa- tion when negotiating compensation that is equal to male peers." Ontario's Police Record and Checks Re- form Act, 2015 came into force as Cana- da's first of its kind. Ontario's Bill 133, e Police Record and Checks Reform Act, 2015, which applies to police record checks conducted to determine employment suit- ability, among other things, came into force Nov. 1, 2018. e act was created in response to concerns about barriers created by the in- appropriate release of sensitive information — mental health history, non-criminal con- tact with police, unproven allegations, and police "carding" information — and incon- sistencies in information collected and dis- closed. e statute authorizes Ontario po- lice services to conduct three types of police record checks — criminal record, criminal record and judicial matter, vulnerable sector — standardizes the process for conducting them, and prohibits the police record check provider from disclosing information unless authorized to do so in accordance with law. Non-conviction information may be ob- tained only on a vulnerable sector check and after satisfying stringent criteria for "excep- tional disclosure." Federal government introduced a new Pay Equity Act with Royal Assent at the end of 2018, but with no announced ef- fective date. On Oct. 29, 2018, the federal government introduced Bill C-86, Budget Implementation Act, 2018, No. 2, which, among other things, introduced the Pay Equity Act. e purpose of Bill C-86 is "to achieve pay equity through proactive means by redressing the systemic gender-based discrimination in compensation practices and systems of employers experienced by employees who occupy positions in pre- HUMAN RIGHTS on page 7 »

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