2022 has been a whirlwind of a year. Between constitutional challenges, COVID-19 cases rising, falling, and rising again, and new laws coming into force, there’s a lot to catch up on. Let us walk you through the top legislative updates of 2022.
1. Working for Workers Act, 2021
Disconnecting from Work Policy
This past June, Ontario employers with 25 or more employees as of January 1, 2022, had to provide employees with a written policy on the right to disconnect from the workplace. In coming years, employers that employ 25 or more employees as of January 1st of that year must have a written policy on disconnecting from work in place by March 1st of that year.
The policy must address the employer’s policy on disconnecting from work. “disconnecting from work” is defined by the Employment Standards Act, 2000 as “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.” The new provisions of the act do not mandate what specific information must be included in the policy, or how long the policy should be. It is possible that more specific requirements may be prescribed in the future.
The provisions mandating a policy on disconnecting from work do not create an independent right for employees to disconnect. The only minimum requirements on hours free from work are the requirements set out in other parts of the Employment Standards Act. However, an employer’s “disconnecting from work” policy may provide greater benefits to the employees than what they would otherwise be entitled to under statute. The policies themselves may create contractually binding rights.
Licensing Requirements for Temporary Help Agencies
The Working for Workers Act, 2021 amends the Employment Standards Act, 2000 to create new licensing requirements for temporary help agencies and recruiters. The amendments make it illegal to act as a temporary help agency or recruiter without a valid license, and outlines certain prohibited activities which will preclude the granting of a license to an agency, including charging fees to foreign nationals.
These amendments are not yet in force, as no licensing framework has been put in place. In November and December 2022, the government launched a consultation into what the framework ought to look like.
The consultation addressed issues of how to define a recruiter, what sort of fee should be required, whether agencies should have to provide security when applying for a license, monetary penalties for non-compliance, and what circumstances should lead to a denial or revocation of a license.
There is no set date for when these amendments will come into force.
2. Minimum Wage Increases
As we’re sure everyone has noticed, 2022 saw increases in cost of living across the country. This has led to increases in minimum wage across most (but not all) jurisdictions in Canada:
- Federal minimum wage increased from $15.00 per hour to $15.55 per hour in April 2022.
- British Columbia’s minimum wage increased this year from $15.20 per hour to $15.65 per hour.
- Alberta’s minimum wage has not changed since 2018. It remains $15.00 per hour.
- Saskatchewan’s minimum wage started the year at $11.81 per hour. The minimum wage was raised in October 2022 to $13.00 per hour, with planned increases to $14.00 in 2023 and $15.00 in 2024.
- Manitoba’s minimum wage, which started this year as $11.95, is currently set at $13.50 per hour. This will increase to $14.15 per hour as of April 1st, 2023.
- Ontario’s minimum wage increased last New Year’s Day from $14.35 per hour to $15.00 per hour. It increase again in October to $15.50 per hour.
- Quebec’s minimum wage increased in May 2022 from $13.50 to $15.70 per hour.
- Newfoundland and Labrador’s minimum wage increased in October 2022 from $12.75 to $13.70 per hour. More increases are planned for 2023, with an expected increase to $14.50 in April and $15.00 in October.
- New Brunswick’s minimum wage increased from $11.75 per hour to $13.75 per hour.
- Prince Edward Island’s minimum wage increased from $13.00 to $13.70 per hour. Another increase to $14.50 per hour will come into effect on New Year’s Day 2023, and minimum wage will rise again to $15.00 per hour in October 2023.
- Nova Scotia’s minimum wage increased from $12.95 to $13.60 per hour. More increases are planned for 2023, with a planned increase to $14.30 in April and to $14.65 in October 2023.
- The Northwest Territories’ minimum wage did not change this year, remaining $15.20.
- The Yukon’s minimum wage increased from $15.20 to $15.70 per hour.
- Nunavut’s minimum wage did not change this year. It remains $16.00 per hour, the highest in the country.
Overall, ten out of the thirteen Provinces and Territories, increased their minimum wage in 2022. The average increase in minimum wage across Canada between December 31st 2021 and December 31st 2022 is 77.5 cents per hour.
3. New Accessibility Legislation
2022 was a good year for accessibility advocates- a number of jurisdictions have introduced or amended accessibility standards and legislation.
Saskatchewan
Saskatchewan introduced Bill 103, An Act respecting Accessibility in Saskatchewan, to the legislature for first reading in November 2022. If passed, this Bill would lead to the creation of new legislation— the Accessible Saskatchewan Act. This Act would empower the minister to promote accessibility by raising awareness of barriers faced by people with disabilities, and to create plans to eliminate those barriers. If passed, the Accessible Saskatchewan Act will require the province to create the Saskatchewan Accessibility Office to provide education, public awareness, monitoring, and compliance for accessibility related issues.
British Columbia
British Columbia enacted a new regulation under the Accessible British Columbia Act. The new regulation states that the Accessible British Columbia Act will now apply to a number of newly designated organizations, including Elections BC, various boards and tribunals, and offices of various Provincial officials.
The regulation also states that the act will start applying to educational institutions, municipalities, and certain public sector organizations in September 2023, and to health authorities, various provincial boards and corporations, and other public sector organizations in September 2024.
Manitoba
Manitoba enacted the Accessible Information and Communication Standard Regulation, under the Accessibility for Manitobans Act. The new standard will focus on removing barriers for Manitobans in accessing information digitally, in-print, or through interactions with people or technology.
The new standard will apply as of May 1, 2023, to employees of the Provincial government. They will apply to public sector organizations, libraries, and educational institutions as of May 2024, and to all employers in May 2025.
4. New Protections for Temporary Foreign Workers
The Federal Government announced some new amendments to the Immigration and Refugee Protection Regulations, in force as of September 2022. The new amendments require employers hiring foreign workers through the Temporary Foreign Worker Program (“TFWP”) or the International Mobility Program (“IMP”) to provide the prospective employees with up-to-date information about their rights in Canada.
Employers must commit to providing Temporary Foreign Workers with a signed copy of their contract of employment on or before their first day of work. The employment agreement must match the actual offer of employment. The agreement must be drafted in the worker’s choice of either English or French.
Employers are now explicitly prohibited from engaging in acts of reprisal against Temporary Foreign Workers. Reprisal against workers is now included within the definition of ‘abuse’.
Employers are now prohibited from charging or recovering fees from temporary Foreign Workers for services related to an LMIA, employer compliance fees, or recruitment fees. Employers are also obligated to ensure that any recruiters acting on their behalf are not charging these fees to Temporary Foreign Workers.
Employers are responsible for paying for private health insurance covering emergency medical care for Temporary Foreign Workers where the worker is not covered by a provincial health system. In case of emergencies, employers are also responsible for arranging access to a phone and for organizing transportation to appropriate medical care.
5. New Criminal Code Offence
The past three years have seen tensions rise in healthcare settings. In response, the Federal government enacted section 423.2 of the Criminal Code. This section was enacted in order to protect healthcare workers who may be facing difficult working conditions, including violence and threats in the workplace. The new offences are also intended to safeguard the right to safe access to healthcare.
Section 423.2(1) makes it an offence to intimidate a person in order to prevent them from obtaining services form a health professional or to intimate a healthcare worker in order to prevent a health professional from doing their work.
Section 423.2(2) makes it an offence to obstruct another person’s access to health services.
Someone found guilty of either intimidation or obstruction of healthcare workers or patients can be liable for a prison sentence of up to 10 years.
These new offences came into force on January 16th, 2022.
6. Quebec Bill 96: An Act respecting French, the official and common language of Québec
On June 1, 2022, the National Assembly of Quebec assented to Bill 96, An Act respecting French, the official and common language of Québec. This was a broad piece of legislation amending the Charter of the French Language. A number of provisions in this act will have a significant impact on the Quebec workplace.
Art. 29 of the new act requires employers in Quebec to provide the following documents to its employees, prospective employees, and former employees (as applicable) in French:
- Any offer of employment, transfer or promotion;
- Any written individual employment contracts;
- All written communication with employee(s) or associations of employees, even after termination;
- Employment application forms;
- Documents relating to conditions of employment, and;
- Training documents produced for the staff.
Where an employer provides application forms, documents relating to employment, and training documents in a language other than French, the French version must have terms that are “at least as favourable” as the non-French version. Employees who receive a contract of employment in both French and another language may choose either contract by which to be bound. Employers may communicate with employees in languages other than French if the employee so requests.
All offers of employment or promotion that are published in a language other than French must also be published in French simultaneously, through the same medium to roughly the same number of people.
All group agreements must now be made available in French.
The new act limits an employer’s ability to require job applicants to speak a language other than French. Employers must now “take all reasonable means to avoid imposing such a requirement”. The employer must take the following steps before requiring knowledge of another language:
- Assess the actual language needs associated with the duties to be performed;
- Make sure that the language knowledge of existing staff members is insufficient to fulfill those duties;
- Restrict the number of positions that require other language skills as much as possible.
Where an employer does require knowledge of another language, she must indicate the reasons for that requirement in the job posting.
Employers who employ 50 or more employees for 6 months or more must register with the Office Québécois de la Langue Française (“the Office”). These employers then have three months to provide the Office with a breakdown of the employer’s linguistic makeup. Employers employing 100 or more people must form a “francization committee”. The committee is responsible for drafting reports on the linguistic situation in the workplace and for developing and implementing a francization program to generalize the use of French at all levels of the enterprise.
Bill 96 safeguards the right to use French at work. It is illegal to discriminate or harass an employee because she does not speak a language other than French, because she expresses herself in French, or because she has asserted her labour relations rights under the Charter of the French Language. Employers are particularly prohibited from engaging in reprisals against employees for asserting their right to speak French, for not knowing a language other than French, or for participating in a francization committee.
The fines for offenses under the Charter of the French Language have increased to up to $7,000 for individuals and $30,000 for organizations.
7. Working for Workers Act, 2022
2022 saw a number of new requirements being introduced for employers in Ontario through the Working for Workers Act, 2022. The Act received royal assent in April 2022.
Naloxone Kits
Certain Ontario employers will soon be required to keep unexpired Naloxone kits on site at their workplaces. Naloxone is a medication that is used to temporarily reverse the effects of opioid overdoses. It is available as both a spray and an injection. This requirement comes into force on June 1, 2023.
Naloxone kits must be kept in the workplace if (1) there is a risk of a worker opioid overdose, (2) there is a risk of the opioid overdose in the workplace, and (3) the risk is posed by a worker who performs work for the employer. Employers must keep at least one Naloxone kit in each workplace where these conditions apply.
Ontario’s Workplace Naloxone Program will provide a free Naloxone kit and free naloxone training for two workers to employers who are required to provide the kits. Employers can access the free kits and training through St. John Ambulance or through the Red Cross.
Electronic Monitoring Policy
This past November, Ontario employers with 25 or more employees as of January 1, 2022, had to provide employees with electronic monitoring policies. In coming years, employers that employ 25 or more employees as of January 1st of that year must have an Electronic Monitoring Policy in place by March 1st of that year. New employees must receive a copy of the policy within 24 hours of the start of their assignment.
The Electronic Monitoring Policy must state whether or not the employer electronically monitors its employees while they are working or when they are using the employer’s devices. If the employer does monitor its employees, the policy must describe how and when the employees are being monitored and the purposes for which the information gleaned will be used. Despite the policy, employers may still use the information for any legitimate use it sees fit.
Digital Platform Workers’ Rights
Digital platform workers (or “gig workers”) have been a hot topic in Ontario since well before the pandemic. In 2020, courts ruled that gig workers have a right to have their legal claims adjudicated as well as a right to unionize.
In April 2022, the legislature enacted the Digital Platform Workers’ Rights Act, 2022. This act creates substantive rights for gig workers, who otherwise tend to fall through the cracks of employment standards legislation.
When this act comes into force, gig workers will have the right to know how their pay is calculated and if and how their tips are collected. They will have the right to know how gigs are distributed, and whether there are consequences for a low rating or for failing to complete an assignment. They will also have the right to know their daily customer rating, if they have one.
Gig workers will be entitled to a regular pay period and pay day. They will be entitled to be paid minimum wage for the work performed and to have their tips fully paid out without deductions. They will also be entitled to know how much they will be earning from each work assignment before accepting the assignment.
Operators of digital work platforms are not allowed to remove a gig worker’s access to the platform without a written explanation for the removal and, for removals of over 24 hours, two weeks’ notice before removal.
There has not yet been a date set for the Digital Platform Workers’ Rights Act to come into force.
Consultants Excluded from the ESA
Effective January 1, 2023, the Employment Standards Act, 2000 is amended to add definitions for “business consultants” and “information technology consultants”. This category of consultants, who provide services through a corporation or as a sole proprietor, are now expressly exempt from the Employment Standards Act, 2000, if they have a written contract that provides for an hourly rate of $60.00 or more, and are paid that amount. Misclassification of consultants as independent contractors, when they are really employees, is a common mistake and can be costly for employers in fines, unpaid holiday and vacation pay and overtime. This amendment eliminates that risk for qualifying individuals. At the same time, the amendment only eliminates the risk under the Employment Standards Act, 2000. Whether an individual is an employee or independent contractor under other legislation, such as the Income Tax Act, must be determined under the applicable legislation.
8. Sick Leave
The third calendar year of the COVID-19 pandemic has seen a lot of people getting sick and missing work. This year, some jurisdictions have created or amended sick leave entitlements to help address this problem.
Federal
Federally regulated employees now benefit from up to 10 paid days of sick leave each year. The new regulation to the Canada Labour Code came into force in December 2022.
Employees who’ve worked continuously for 30 days will be entitled to 3 days of paid medical leave. Employees will earn an additional day of paid medical leave for each month of continuous employment that they complete, up to a maximum of 10 paid days of leave per calendar year.
Employers may require an employee to take medical leave in periods of not less than one day. If an employee is taking 5 or more sick days in a row, the employer may require her to provide a medical certificate. Current employees become eligible to start using their sick leave on December 31, 2022.
The Federal government also adjusted the length of unpaid leave that federally regulated employees are entitled to take.
British Columbia
On January 1st, 2022, British Columbia amended its Employment Standards Act to implement paid sick leave for provincially regulated workers. Employees are entitled to 5 paid days of sick leave and 3 unpaid sick days in each calendar year. British Columbia recently clarified that employers are unable to contract out of this minimum requirement.
Ontario
Back in April 2021, Ontario amended s. 50.1 of the Employment Standards Act, creating an entitlement to 3 days of paid sick leave for certain reasons related to COVID-19. This applies to employees who have COVID-19, employees in isolation, employees under medical investigation, and employees subject to restrictive public health measures.
In July 2022, the Infectious Disease Emergency Leave Regulation was amended to extend the entitlement to these paid sick days through to March 31, 2023. Ontario still has not implemented any entitlements to paid sick leave for non-pandemic related reasons.
9. Ontario Bill 124 Declared Unconstitutional
In November 2019, Ontario’s legislature passed Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019. Bill 124 limited wage increases for certain public sector employees to 1% per year for 3 years. This legislation applied to employees in hospitals, schools, care homes, post-secondary institutions and more. The 3-year window in which the wage freeze occurred had to begin by no later than June 5, 2019, for unionized employees and January 1, 2022 for non-unionized employees.
In a November 2022 decision, Ontario English Catholic Teachers’ Association v. His Majesty, 2022 ONSC 6658, the Superior Court ruled that Bill 124 violated s. 2(d) of the Charter. Freedom of association under s. 2(d) protects individuals’ rights to belong to associations such as trade unions. The court found that Bill 124 substantially interfered with unions’ ability to engage in collective bargaining. The violation of s. 2(d) was not justified under s. 1 of the Charter. Rather than invalidating only certain provisions of the act, the court declared the entire act to be void and of no effect.
Any other remedies have been deferred to a further hearing. The Government of Ontario filed a Notice of Appeal on December 29, 2022.
10. Ontario Bill 26: the Strengthening Post-secondary Institutions and Students Act, 2022
University students and recent graduates will know that sexual misconduct by professors is a hot-button issue on campus. With the advent of the Me Too movement, there has been a wave of current and former students breaking their silence about sexual coercion and abuse of power by university faculty members and staff.
In October, the Minister of Colleges and Universities introduced a new bill intended to address these issues. Bill 26, the Strengthening Post-secondary Institutions and Students Act, 2022, makes “sexual abuse” of any degree a fireable offence for employees of Ontario’s public universities and colleges, and private colleges. The Bill received Royal Assent on December 8th with substantive provisions of the Act coming into force on July 1, 2023.
The Minister identified three main purposes of this proposed legislation:
- To ensure that sexual abuse of a student by a faculty member would be just cause for dismissal;
- To prevent the use of non-disclosure agreements to cover up employee sexual misconduct, and;
- To require institutions to have sexual misconduct policies that provide rules for behaviour between employees and students and examples of disciplinary measures for employees who break these rules.
This Act will ensure that if an employee of a post-secondary educational institution is disciplined or terminated for sexual misconduct, that discipline will be deemed to be “for just cause”. The employee would forfeit any right to notice of termination (or pay in lieu of notice) or any other compensation as a result of the discharge. This would include severance pay.
Arbitrators will have no jurisdiction to substitute a lesser penalty where employees are terminated or disciplined for sexual misconduct, regardless of the provisions of the collective agreement, even if the collective agreement indicates that a lesser penalty should apply.
Institutions can no longer use confidentiality agreements. Any term included in an agreement that would prohibit the disclosure of past sexual misconduct towards a student is void, including terms in collective agreements or settlement agreements.
Once an educational institution terminates an employee for sexual misconduct, or an employee resigns before being dimissed, they will not be allowed to rehire that employee.
The definition of sexual misconduct under this act is broad. It encompasses various types of sexual activity including physical sexual relations, touching of a sexual nature, and remarks of a sexual nature. That activity falls under the ambit of this act includes any activity that violates the Criminal Code, the student’s rights to be free from sexual solicitation or advance under the Human Rights Code, and any activity defined in the institution’s rules and policies respecting sexual relations between employees and students.
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This year has been a rollercoaster, with plenty of legislative changes throughout the country. With 2023 right around the corner, there are sure to be many more exciting changes to come.
We at Hunter Liberatore Law want to wish everyone a wonderful holiday season and a happy and healthy New Year 2023. Cheers to another year!