December 30, 2014
In 2014 employers in Ontario, Canada were required to respond to numerous changes in the employment law landscape according to employment lawyer, Doug MacLeod.
“2014 will be remembered as a year when employee rights were significantly expanded by the Ontario government and the courts” observes MacLeod who limits his practice to labour and employment law.
The year started with a requirement that organizations with 50 or more employees establish and post a multi-year accessibility plan under the The Accessibility for Ontarians with Disabilities Act. “This is a little known law within the employer community and the government will need to devote considerable resources to public education to ensure compliance” says MacLeod.
In July, an amendment to the Occupational Health & Safety Act came into effect which required almost all employers to provide mandatory health & safety training to almost all employees. “I believe most employers were aware of this requirement and provided the training and I expect that a more educated workforce will start filing more health & safety complaints” predicts MacLeod.
In October, three new unpaid leaves were added to the Employment Standards Act including the family caregiver leave which provides for up to 8 weeks unpaid leave each year to care for certain family members with a “serious medical condition”. “I expect this new leave will result in scheduling and staffing challenges for employers, particularly small employers” says MacLeod
In November, Bill 18 received Royal Assent and when it takes effect on February 20, 2015 it will, among other things, tie the minimum wage to the Consumer Price Index, expand the definition of “worker” under the Occupational Health & Safety Act, and remove the $ 10 000 cap on damages that can be awarded by an employment standards officer under the Employment Standards Act. “I believe these changes will increase the costs associated with co-op students, interns and volunteers. We also believe this new law will result in more employees seeking termination pay and severance pay from the Ministry of Labour instead of seeking wrongful dismissal damages from the courts.” says MacLeod who has been providing Ontario employers with employment law advice for over 25 years.
New Judge made Law
In 2014 the Supreme Court of Canada made it much easier to bring a summary judgment motion to decide wrongful dismissal cases where just cause is not alleged when it released Hryniak v. Mauldin, 2014 SCC 7. “There have been several wrongful dismissal cases decided by summary judgment since this case was released and I expect this trend will continue” opines MacLeod.
In an important decision, WSIAT Decision No. 2157/09, the Ontario Workplace Safety & Insurance Appeals Tribunal concluded that sections of the Workplace Safety & Insurance Act were unconstitutional because this law treats workers with mental disabilities differently than workers with physical disabilities. MacLeod believes this will result in more claims from employees who are unable to work because of mental illness that is caused by work.
The Federal Court of Appeal released a decision, Canada (Attorney General) v. Johnstone, 2014 FCA 110, which set out a four-part test that an employee must satisfy when seeking family status accommodation. According to MacLeod, “This kind of case usually arises when an employee asks to have her hours of work modified to accommodate the employee’s childcare obligations. This decision was important because there were conflicting lower court decisions on this issue.” observes MacLeod.
The Ontario Court of Appeal upheld a large damage award against retail giant, Walmart in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419. In particular, the OCA ordered Walmart to pay $200,000 Wallace damages, $ 100,000 in punitive damages, $100,000 tort damages, constructive dismissal damages, and legal fees. According to MacLeod this decision surprised many employment lawyers given the Supreme Court of Canada’s decision in Honda Canada Inc. v. Keays, 2008 SCC 39. Further he predicts: “We believe this case will result in more employees claiming higher damages in wrongful dismissal cases.”
During the year the Ontario Human Rights Commission released a new comprehensive policy entitled: “Policy on preventing discrimination based on mental health disabilities and addictions.” MacLeod Notes: “This policy does not have the force of law but the Ontario Human Rights Tribunal (“the Tribunal”) must consider it if one of the parties before the Tribunal asks it to do so. Disability complaints comprise over 50% of all employment related complaints and the number of mental disability claims is rising so we expect this will become an influential policy.”