Legislative Updates
Like us, you probably did not think that when the Ontario government passed the Working for Workers Act, 2021 in December 2021, you would see several subsequent versions of similar legislation, all imposing a multitude of new requirements eventually passed. Now, less than three years since the original legislation was passed, the government has introduced the Working for Workers Five Act, 2024 (“Bill 190”). If passed, Bill 190 will amend the Employment Standards Act, 2000 (“ESA”) and the Occupational Health and Safety Act (“OHSA”), amongst other pieces of legislation. Below, we summarize some of the key proposed amendments to the ESA and OHSA that will impact Ontario employers if this legislation is passed.[i]
Proposed Changes to the ESA
Job Postings
If passed, Bill 190 will require employers that publicly advertise job postings to include a statement in postings disclosing whether the posting is for an existing vacancy or not, as well as “such other information as may be prescribed”. In light of the government’s announced interest in “increasing fairness for jobseekers”, the amendment is likely targeted at employers who advertise job postings to merely test their luck and see if the posting attracts any “star candidates”, without necessarily having an available position. Bill 190 permits exceptions to the amendment to be prescribed. No guidance or additional insight has yet been given as to what “may be prescribed” in this regard. This amendment would go into force on a date to be proclaimed by the Lieutenant Governor.
The Duty to Inform Interviewees and the Retention of Information
Employers that interview applicants for a publicly posted job will be required to provide applicants with certain information within a particular period of time. Both the time period and the nature of the information to be provided to the applicant are not outlined in Bill 190. The Bill also opens the door for the government to define what an “interview” is for the purposes of these provisions in later regulations. Again, given the government’s stated interest in increased fairness, the amendment is likely aimed at ending the practice of employers “ghosting” job applicants during the recruitment and hiring process.
In addition, employers will be required to retain certain as yet unidentified information for three years from the day the information was provided to the job applicant.
If passed, both of these amendments would go into force on a date to be proclaimed by the Lieutenant Governor.
Sick Notes
While Bill 190 maintains an employer’s ability to require an employee who takes the three days of unpaid sick leave provided under the ESA to provide “evidence reasonable in the circumstances” that the employee is entitled to the leave, it proposes the caveat that an employer cannot require an employee to provide a certificate from a qualified health practitioner as evidence of their entitlement. The government previously announced that this amendment was being introduced to relieve the administrative burden on healthcare professionals and advised employers that they could instead request an attestation from employees as evidence of entitlement. This amendment would enter into force on the day that Bill 190 is passed.
Increased Fines
The maximum fines for individuals convicted of contravening the ESA or its regulations, or to have failed to comply with an order or requirement under the ESA, are increased from $50,000 to $100,000. This amendment would also enter into force on the day that Bill 190 is passed. It’s important to note that this proposed amendment does not alter the existing alternative for such individuals to be imprisoned for up to 12 months, or the maximum fines for corporations of $100,00 for first-time offenders, $250,000 for second offences, and $500,000 for third or subsequent convictions.
As a note, while the government’s May 6, 2024 announcement of Bill 190 includes increased fines for repeat offenders found to have breached the same provision of the ESA three or more times, no such change is reflected in Bill 190 itself. We will continue to monitor Bill 190 to see what, if any, changes are made as it moves through the legislative process.
Proposed Changes to the OHSA
Application to Private Residences and the Recognition of a Virtual World
Bill 190 would extend the OHSA’s application to private residences if an employee works from home, whether entirely or on a hybrid basis.
Additionally, the definitions of “workplace harassment” and “workplace sexual harassment” would be amended to include virtual activities. Though several employers likely already consider online harassment to be a form of harassment in their workplace, Bill 190 will require employers to expressly recognize this.
Further, Bill 190 would authorize joint health and safety committee (“JHSC”) meetings to be held virtually and would allow the various postings required under the OHSA, including the OHSA itself, the employer’s health and safety policy, and the names and work locations of JHSC members, to be posted electronically in a format that is easily accessible to employees.
Don’t Forget About the Working for Workers Four Act, 2024
On March 21, 2024, the Working for Workers Four Act, 2024 was passed, making additional changes to statutes including the ESA and the OHSA. Among the most significant of those key changes include the following:
Agreement on the method of paying vacation pay: Effective June 21, 2024, if an employer pays vacation pay in a way other than by providing a lump sum payment before an employee’s vacation, an agreement between the employer and employee must be in place specifying the method of payment.
Additional rules on the payment of wages by direct deposit: Effective June 21, 2024, the payment of wages via direct deposit will only be permitted where, not only the account is in the employee’s name and no other person, other than the employee or a person authorized by the employee, has access to the account, but also, where the account is selected by the employee, and the account meets certain prescribed criteria.
While we can’t promise that a sixth iteration of the “Working for Workers” legislation won’t be announced, the lawyers at Piccolo Heath LLP can assist employers in implementing any of the new requirements described above.
Caselaw Updates
In addition to the many legislative updates that have been proposed, the courts in Ontario have also been busy releasing decisions in the last few months. Below are some examples of key decisions that we have summarized:
Croke v. VuPoint System Ltd., 2024 ONCA 354 - Vaccination Refusal Constituted Frustration of Contract
On May 7, 2024, the Ontario Court of Appeal upheld the lower court’s decision, which found that an employee’s refusal to comply with a mandatory COVID-19 vaccination policy constituted “frustration”. In this case, the employee’s employment ended after they refused to comply with the vaccination policy of the employer’s main client. The Court of Appeal found that the employee was not entitled to any wrongful dismissal damages, as the vaccination policy constituted a supervening event that amounted to frustration of contract. This case is an example of how an unforeseen circumstance that is outside of an employee or employer’s control and radically alters a contract can give rise to a successful argument of frustration.
Krmpotic v. Thunder Bay Electronics Limited, 2024 ONCA 332 – Mental Distress Damages Without Medical Documentation
On May 2, 2024, the Ontario Court of Appeal dismissed an employer’s appeal of a decision that made an award for aggravated damages, among other things. The appellant employer argued that once the trial judge rejected the employee’s claim for mental distress damages, the trial judge could not have awarded aggravated damages. The Ontario Court of Appeal held that merely because the employee had not provided medical evidence that he suffered a diagnosable psychological injury did not preclude an award of mental distress damages. Since the employer was found to have engaged in bad faith conduct during the termination process and the employee suffered harm beyond the normal distress and hurt feelings resulting from termination, aggravated damages were warranted.
·Gannon v. Kinsdale Carriers, 2024 ONSC 1060 – Failure to Mitigate
On February 20, 2024, the Ontario Superior Court held that an employee’s rejection of a job with a different employer to “see what’s out there” and pursue online courses constituted a failure to mitigate, disentitling an employee from damages for reasonable notice. In this case, the employer advised the employee that its business was closing and provided the employee with contact information for a company in the same industry that may be hiring. When the employee was offered a full-time role and declined the offer, the Court held that the employer should not bear the burden of funding the employee’s “educational pursuits”.
[i] At the time of drafting this update, Bill 190 remains at its second reading and has been ordered to be referred to the Standing Committee on Finance and Economic Affairs.