We published over 50 posts in 2023 as part of our monthly newsletter covering what is new and exciting in labour and employment law. In our final post of the year, we summarize the highlights.
Just Cause Makes a Comeback
From remote workers engaging in time theft, to the deliberate deletion of an internal website (twice), to uttering racial slurs and profanity, adjudicators were not tolerating employee misconduct in 2023. In one case, the Court went so far as to award punitive damages against an employee.
The Ontario Government Tinkers with Minimum Standards
The Working for Workers Act, 2022, the Working for Workers Act, 2023, and the Working for Workers Four Act, 2023 may not demonstrate much creativity regarding legislation titles, but the contents of the Acts all had implications in 2023. The 2022 Act introduced an exclusion for “business consultants” and “information technology consultants” effective January 1, 2023. As of June 1, 2023, employers must keep Naloxone kits in the workplace. The first of the 2023 Acts, among other things, added mass termination protections for remote workers, extended reservist leave and increased fines under the Occupational Health and Safety Act. The second 2023 Act is not in force yet. If passed, it will adjust the yet-to-be-proclaimed gig workers protection legislation and require public job postings to include salary ranges and whether artificial intelligence is used in recruiting.
Bill 124 Aftermath
Last year, we wrote about the Protecting a Sustainable Public Sector for Future Generations Act, 2019, commonly known as Bill 124, and the Ontario Superior Court’s finding that it violated section 2(d) of the Charter of Rights and Freedoms. The Government of Ontario appealed, and the appeal was heard in June 2023, but no decision has been issued as of the date of publication. Since that time, modest wage re-openers have been awarded by interest arbitrators. The trend following this development is significant public sector wage increases, both negotiated and awarded.
Pay Transparency
As noted above, if the Working for Workers Four Act, 2023, is enacted, employers in Ontario will be required to include salary ranges in public job postings. British Columbia has gone much further and introduced extensive reporting obligations around pay trends by gender and minority status.
Interesting Contract Cases
The Courts were busy in 2023 addressing several employment and employment-adjacent contract interpretation issues:
- In Celestini v. Shoplogix Inc., the Ontario Court of Appeal found that an otherwise valid termination clause was unenforceable because the “substratum” of the contract had changed over time. Under the substratum doctrine, the courts consider whether the foundation of the employment contract has disappeared or substantially eroded such that enforcing the contract terms (particularly the termination clause limiting notice entitlements) would be unfair to the employee.
- The Court of Appeal confirmed in EF Institute for Cultural Exchange Limited v. WorldStrides Canada, Inc. that it is not a breach of a non-compete to commence a job search with a competitor before the restriction expires.
- Independent contractors have a duty to mitigate damages under a fixed-term contract, even though employees may not. See Monterosso v. Metro Freightliner Hamilton Inc. compared to Tarras v. The Municipal Infrastructure Group Ltd.
- The importance of bringing changes to contract terms to employees’ attention was reiterated by the Court of Appeal in Maynard v. Johnson Controls Canada LP.
Is this the End of COVID-19?
If only it were true. In January, we reported on new workplace guidelines related to Covid-19 as the World Health Organization declared that COVID-19 was no longer considered severe. In a year relatively free of restrictions, closures, and public health warnings, there was plenty of legal activity dealing with the aftermath of the pandemic.
In March, we reported that Labour arbitrators continued to find that vaccine mandates were reasonable workplace policies. However, some arbitrators found that a refusal to comply was not just cause for termination of employment. On the other hand, an Ontario court found that refusing to vaccinate frustrated the employment contract and no damages were payable to a non-union employee.
At the end of March, paid IDEL leave came to an end.
On April 26, 2023, arbitrator Robert Herman issued his much-anticipated decision in Lakeridge v. CUPE confirming that discipline and termination for just cause were available responses defence for hospital employers faced with unvaccinated employees during the pandemic. In July, Arbitrator Herman upheld the termination of an unvaccinated employee who, in addition to refusing to comply with the vaccine policy, also refused to undergo Rapid Antigen Testing.
We anticipate further activity around the aftermath of COVID-19 in 2024, including challenges about unionized terminations, further consideration of the impact of the pandemic on wrongful dismissal damages and the ongoing friction between employers and employees regarding remote work and the expectation to return to the office. We will continue to keep you updated on new developments as the year progresses.