Canada: World Of Work: Employment And Labor Law Highlights In 2023 – Canada (Video)

In this episode, we focus on the Canada region and Toronto Employment and Labor partner Meaghen Russell speaks with Toronto Employment and Labor associate, Claire Browne.

Our top five developments so far this year are:

1. Introduction of the British Columbia Pay Transparency Act

The British Columbia (BC) Pay Transparency Act imposes several limitations on employers with respect to pay transparency. In particular, the Pay Transparency Act imposes obligations in the following areas:

• Pay history;
• Job postings;
• Pay secrecy; and
• Pay transparency reporting.

Action point for employers - Although there is currently no enforcement mechanism under the BC Pay Transparency Act, employers should anticipate that non-compliance will be enforced through the BC Human Rights Code. Therefore, employers should take steps to ensure that they comply with the requirements set out in the BC Pay Transparency Act and any best practices that are related to these requirements, as we anticipate that this area will be subject to increased scrutiny in the coming years.

2. Alberta Court recognizes the independent tort of harassment

In Alberta Health Services v. Johnston, 2023 ABKB 209, the Alberta Court of King's Bench recognized the independent tort of harassment for the first time.
The Court defined the tort of harassment as follows:

• The defendant has engaged in repeated communications, threats, insults, stalking or other harassing behaviours in person or through other means;
• That they knew or ought to have known was unwelcome;
• Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for their safety or the safety of their loved ones, or could foreseeable cause emotional distress; and
• Caused harm.

With the advent of the independent tort of harassment, Alberta employees now have the option to file a claim against their employer alleging vicarious liability for harassment in the workplace.
Action point for employers -This case reminds employers of the continued importance of promptly responding to and investigating complaints of harassment as an employer's defence to an employee's claim of the tort of harassment will likely be that the employer conducted a thorough and proper investigation once they became aware of any alleged harassment in the workplace.

3. Trend towards awarding moral damages in Ontario wrongful dismissal matters

In Teljeur v. Aurora Hotel Group, 2023 ONSC 1324,the Ontario Superior Court of Justice awarded CA$15,000 in moral damages to the plaintiff. The Court identified the following "disturbing aspects" about the employee's termination as supporting the award of moral damages in this case:

• There was no evidence that the employer provided the employee with written notice of termination of employment as required by the Ontario Employment Standards Act, 2000;
• The employer failed to deliver the employee's statutory minimum entitlements within the requirements set out under the Ontario Employment Standards Act, 2000;
• The employer failed to provide the employee with the expense reimbursements owed to the employee in relation to out of pocket expenses that were incurred by the employee on behalf of the employer prior to the termination of employment; and
• Despite providing an assurance during the termination meeting that the employee would receive 8 weeks of severance, the employer limited the amount of severance that was paid to the employee's minimum statutory entitlements under the Ontario Employment Standards Act, 2000.

Action point for employers -This case is a good reminder that written notice of termination must be provided to employees in accordance with the Ontario Employment Standards Act, 2000. This case also reminds employers to ensure that their termination letter templates cover off all of an employee's minimum entitlements under the Ontario Employment Standards Act, 2000. In addition, we recommend that employers ensure that they have checklists that articulate the steps that employers are required to take following a termination and to ensure that those steps are complied with during each termination.

4. Ontario courts continue to scrutinize termination provisions

In Tan v. Stostac Inc., 2023 ONSC 2121, the Ontario Superior Court of Justice (the Court) determined that an employee was entitled to common law reasonable notice of termination because the "with cause" portion of the contractual termination provision violated the Ontario Employment Standards Act, 2000 and, accordingly, rendered the entire termination provision void and unenforceable.

The contractual termination provision provided that the employer could terminate the employee without notice or pay for "any just cause." While reviewing the termination provision, the Court concluded that the termination provision gave the employer the right to terminate the employee's employment without notice or pay in lieu of notice for just cause in a manner that might fall short of non-trivial wilful misconduct.

Action point for employers -This case reminds employers that Ontario courts continue to scrutinize the enforceability of termination provisions in contractual employment agreements. Therefore, employers should ensure that their employment agreement templates have been reviewed by legal counsel and that any termination provisions that are set out in these agreements have been reviewed and revised where required.

5. Québec introduces Bill 19, An Act respecting the regulation of work by children

Bill 19, An Act respecting the regulation of work by children, proposes several measures concerning the regulation of work performed by children in Québec.

In particular, Bill 19 amends the Act respecting labour standards to prohibit an employer from having work performed by a child under the age of 14. Further, effective September 1, 2023, children in Québec that are subject to mandatory school attendance are only permitted to work up to a maximum of 17 hours per week, including 10 hours from Monday to Friday.

Bill 19 also increases the amount of the fines that may be awarded with respect to the contravention of provisions of the Act relating to work performed by children.

Action point for employers -This development reminds employers to ensure that they are familiar with any additional employment protections that apply to employees who are children and/or subject to mandatory school attendance.

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