Canadian Employment Law Today

Canadian HR Reporter, 2021 4 A rundown of notable employment and labour law changes from the past year 14 key developments in 2020 THE YEAR 2020 was one like no other in recent memory. Many employment law standards and principles went out the window as part of the rapid and radical change the pandemic brought to the way businesses operate. Here are some of the most prominent developments that affect - ed employers and employees, both at the provincial and federal levels — some di- rectly related to COVID-19 and some not. The Ontario Superior Court recognized a new invasion of privacy tort: "public- ity which places the plaintiff in a false light in the public eye." The recognition by Ontario's Superior Court of the new "false light" privacy tort in a family law case, Yenovkian v. Gulian, was significant to employers. The decision is a caution for employers that before they disseminate in- formation about people to the public, in- cluding on the internet, they must ensure that it will not portray the person in a false light (i.e., as other than they are). Employ- ers should be attentive to the language used in in their statements both to their own employees and to the general public, including when an employee or company officer is under investigation or has left the company, whether voluntarily or other - wise. In all cases, these statements should be reviewed carefully to ensure that they do not make claims that are false or mislead- ing. Employers that do not conduct such a review may find themselves liable for sig- nificant damages for this new invasion of privacy tort, especially if the harm from the publicity is significant and their conduct is outrageous and egregious. The Federal Court of Appeal affirmed federally regulated employees can make unjust dismissal complaints af- ter signing releases. In Bank of Montreal v. Li, the Federal Court of Appeal (FCA) dismissed the employer's appeal of the Federal Court's decision and the Supreme Court of Canada subsequently dismissed an application for leave to appeal of the FCA judgment. Accordingly, employees of federally regulated employers may make claims for unjust dismissal during the per - missible 90-day period, even after signing releases and settlement agreements. The Canadian federal government pro- vides 75-per-cent Canada Emergency Wage Subsidy (CEWS) to motivate business owners to keep employees employed during COVID-19 pandem- ic. The federal government created the 75-per-cent CEWS and made it available to all eligible companies — large, medium, small and non-profits — that experienced a specified reduction in revenue. The ob - jective of the CEWS is to prevent further job losses, encourage employers to re-hire workers laid off due to COVID-19 and make it easier for employers to resume nor- mal operations when the pandemic ends. New leaves of absence created in some Canadian jurisdictions in response to COVID-19. In response to the COVID-19 crisis, the governments of a number of ju- risdictions in Canada amended their em- ployment standards legislation to entitle employees to emergency unpaid job-pro- tected leave when unable to work due to the declaration of a state of emergency or for reasons related to the designation of COVID-19 as an infectious disease. The federal government announced Canada Emergency Response Benefit (CERB) to support workers and busi- nesses during COVID-19 pandemic. On March 25, 2020, the Government of Cana- da announced the CERB to support work- ers and businesses during the COVID-19 pandemic. The CERB was a taxable benefit open to workers regardless of their eligibil- ity to receive Employment Insurance bene- fits. It provided workers who qualified with $2,000 per month for a specified number of months. The Ontario government filed regu- lation under Employment Standards Act, 2000 eliminating (in most cases) temporary layoffs and risk of construc- tive dismissal claims for defined "CO- VID-19 period." On May 29, 2020, the government of Ontario filed Regulation 228/20 under the province's Employment Standards Act, 2000 (ESA). The regula- tion amended layoff and constructive dis- missal rules under the ESA and, in most cases, eliminates temporary layoffs and constructive dismissal claims for a defined "COVID-19 period" (March 1, 2020 to July 3, 2021) during which many employers in Ontario have had to close or reduce opera - tions. There is no case law yet on whether this regulation impacts the common law or is limited to the statute. The Ontario Court of Appeal held prop- er method for determining enforceabil- ity of termination clause is to analyze employment agreement as a whole. In its June 17, 2020 decision of Waksdale v. Swegon North America Inc., the Ontario Court of Appeal held that the proper meth- od for determining whether a termination clause in an employment agreement is en- forceable is to analyze the agreement as a whole, rather than on a piecemeal basis. If any termination provision in the agree- ment is contrary to the requirements of the province's Employment Standards Act, 2000 (ESA), all termination provisions in the contract will be considered unenforce- able — regardless of the existence of a sev- erability clause, which cannot be utilized to sever the offending portion of the termi- nation provisions. Employers that wish to rely on an ESA-compliant "without cause" provision may be prevented from doing so and required to pay damages in lieu of common law reasonable notice if any other termination provision in the agree - ment violates the ESA. Accordingly, in light of Waksdale, employers must take extreme care to ensure that every termination provi- sion in their employment contracts com- plies with the minimum requirements of the ESA. The Supreme Court of Canada dis- missed the employer's application for leave to appeal. The Court of Appeal of Newfoundland and Labrador held that employer must individually assess if employee can safely perform job despite use of medi- cal cannabis, without undue hardship to employer. On June 4, 2020, in Inter- national Brotherhood of Electrical Workers, CASE IN POINT: EMPLOYMENT LAW As we entered a new decade in 2020, Canada saw significant developments in labour and employment law, some of which related to COVID-19. Employment lawyers from Littler LLP in Toronto discuss 14 key 2020 developments that significantly affected employers over the course of the year and may continue to do so in the near future. BACKGROUND BY RHONDA LEVY, SARI SPRINGER, BARRY KURETZKY, GEORGE VASSOS AND MONTY VERLINT

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