On February 28, 2022, the Ontario Government proposed Bill 88 – An Act to enact the Digital Platform Workers’ Rights Act, 2022 and to amend various Acts (the “Bill”), which proposes significant changes to the legislative landscape as it relates to employment in Ontario. The proposed amendments are as follows.
Digital Platform Workers’ Rights Act, 2022
Schedule 1 of the Bill enacts the Digital Platform Workers’ Rights Act, 2022 (the “Act”). The Act begins with definitions, including:
- “digital platform” means an online platform that allows workers to choose to accept or decline digital platform work;
- “digital platform work” means the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform; and
- “worker” means an individual who performs digital platform work and includes a person who was a worker.
The purpose of the Act is to establish certain worker rights for workers, regardless of whether those workers are employees. The rights are as follows:
- The right to information
- The right to a recurring pay period and pay day
- The right to minimum wage
- The right to amounts earned by the worker and to tips and other gratuities
- The right to notice of removal from an operator’s digital platform
- The right to resolve digital platform work-related disputes in Ontario
- The right to be free from reprisal
To ensure compliance, the Act has a Complaints and Enforcement section which sets out the procedures for complaints and penalties for failing to comply with the Act.
Proposed Changes to the Employment Standards Act, 2000
a) Non-Application of the ESA
Pursuant to section 3(5) of the ESA, certain individuals and persons for whom such individuals perform work or from whom such individuals receive compensation, are not subject to the ESA. The Bill proposes the addition of: (1) business consultants; and (2) information technology consultants, to this list of individuals to whom the ESA does not apply.
For business consultant or information technology consultant to be exempt, they must provide services through:
- A corporation of which the consultant is either a director or a shareholder who is a party to a unanimous shareholder agreement; or
- A sole proprietorship of which the consultant is the sole proprietor, if the services are provided under a business name of the sole proprietorship that is registered under the Business Names Act.
Further, there has to be an agreement for the consultant’s services that sets out when the consultant will be paid and the amount they will be paid, which must be equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or such other amount as may be prescribed, and must be expressed as an hourly rate. The consultant must be paid the amount set out in the agreement.
If the Bill is passed, these changes will come into effect on January 1, 2023.
b) Written Policy on Electronic Monitoring of Employees
The Bill proposes a new requirement for employers employing 25 or more employees on January 1 of any year to have a written policy in place by March 1 of that year for all employees with respect to electronic monitoring of employees.
If the Bill is passed, employers will have 6 months from the date the Bill receives Royal Assent to comply.
The written policy must contain the following information:
- Whether the employer electronically monitors employees and if so,
- A description of how and in what circumstances the employer may electronically monitor employees; and
- The purposes for which information obtained through electronic monitoring may be used by the employer.
- The date the policy was prepared and the date any changes were made to the policy.
- Such other information as may be prescribed.
Employers required to have a written policy on electronic monitoring will also be required to provide a copy of the policy to each of the employer’s employees within 30 days from the day the employer is required to have the policy in place or, if an existing policy is changed, within 30 days of the changes being made.
With respect to new employees, employers are required to provide a copy of their written policy within 30 days of the day the employee becomes an employee or within 30 days from the day the employer is required to have the policy in place, whichever is later.
Employers that are clients of temporary help agencies and in receipt of new assignments must provide a copy of their written policy within 24 hours of the start of the assignment or within 30 days from the day the employer is required to have the policy in place, whichever is later.
c) Amendments to s. 50.2 of the ESA
Section 50.2 of the ESA governs reservist leaves of absence. The proposed amendments are:
- To provide that an employee is entitled to a leave under section 50.2 of the ESA if the employee is participating in Canadian Armed Forces military skills training; and
- To provide that an employee is entitled to a leave under section 50.2 of the ESA after being employed by the employer for three (3) consecutive months.
Proposed Changes to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006
Among the various proposed amendments to the Fair Access to Regulated Professions and Compulsory Trades Act (the “Act”), the key amendment is the establishment of timelines within which regulated professions must respond to applications for registration from domestic labour mobility applicants unless an exemption is granted from the requirement.
More specifically, a regulated profession shall, within 30 business days after receiving an application for registration from a domestic labour mobility applicant and everything required by the regulated profession in respect of the application, make a registration decision and provide the applicant with written communication of the decision, written reasons for the decision, and information respecting the applicant’s rights to any internal review/appeal procedures, including any deadlines.
Proposed Changes to the Occupational Health and Safety Act
Bill 88 proposes various amendments to the Occupational Health and Safety Act (the “Act”), including the following:
- A requirement for employers to provide naloxone kits if they become aware, or ought reasonable to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer, or where the prescribed circumstances exist;
- An increase to the maximum fine for convictions under the Act from $100,000 to $1,500,000 for directors or officers of corporations and to $500,000 for other individuals;
- A list of aggravating factors to be considered in determining a penalty, such as “the offence resulted in death, serious injury or illness of one or more workers” and “the defendant committed the offence recklessly”; and
- An extension to the limitation period for instituting a prosecution from one (1) year to two (2) years.
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