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THE EMPLOYERS' EDGE

2016 In Review - A Look Back At The Top Cases And Key Legislative Changes That Impacted Your Workplace

2016 featured many significant decisions and legislative changes impacting employers. Over the course of the year, CCP blogged on these developments - here is a recap of our “top 10” cases and most significant changes along with links to the original blogs. Enjoy!

Top Labour and Employment Cases of 2016

  1. Keenan v Canac Kitchens Ltd. 2016 ONCA 79: In January, the Ontario Court of Appeal provided guidance to employers on how to determine whether someone is an employee, independent contractor or somewhere in between. This case examined the significance of someone working exclusively for one employer in determining employment status. Going forward in 2017, employers should be cautious in relying on “contractor status” to avoid notice obligations on termination. Read more here.
  2. Nagribianko v Select Wine Merchants Ltd 2016 ONSC 490: Also in January, the Ontario Divisional Court provided good news for employers. In this case an employer successfully relied on a probationary period to terminate an employee without owing any common law reasonable notice. Employers should take note that a well worded contract on probationary periods may avoid common law reasonable notice, but that statutory entitlements will be owed to the terminated employee after three months. Read more here.
  3. Howard v Benson Group Inc (The Benson Group Inc.) 2016 ONCA 256: In April, the Ontario Court of Appeal reminded employers of the importance of a properly worded employment agreement.In this case a fixed term employee was terminated prior to the end of his contract. The Court of Appeal struck the unenforceable termination clause from the contract and awarded the balance of the contract to the terminated employee. Employers should take note of the risk in terminating fixed term employees – or any employee without a well worded contract. This year employers should review their employment contracts for enforceable termination clauses.Read more here.
  4. Fair v Hamilton Wentworth District School Board 2016 ONCA 421: In May, the controversial and precedent-setting award of the Human Rights Tribunal to reinstate an employee was affirmed by the Court of Appeal. The Court found no error in the assessment of facts, law or remedy in the circumstances and affirmed the award of reinstatement and nine years of back pay. In 2017, employers should be thorough in their attempts to accommodate employees who are ready to return to work to avoid exposure at the Tribunal. Read more here.
  5. Oudin v Centre Francophone de Toronto 2016 ONCA 514: In June, the Ontario Court of Appeal departed from prior case law and enforced a termination clause that referenced the Employment Standards Act, but did not reference every entitlement under the Act. The Court used a common sense approach to determine that the parties meant to limit entitlements to those outlined in the Act and enforced the clause. This case is a welcome change for employers; however, a well drafted employment contract will increase the likelihood of being able to successfully rely on a termination clause to limit entitlements. Read more here.
  6. Wilson v Atomic Energy of Canada Ltd 2016 SCC 29: In July, the Supreme Court delivered bad news to federal employers when it restored the arbitration decision and found that federal employers will require just cause to terminate a non-union and non-management employee. Going forward federal employers will once again be required to provide reasons for any dismissal to avoid a possible contravention of the Canada Labour Code. Read more here.
  7. R v Jordan 2016 SCC 27: Also in July, the Supreme Court provided optimism for employers facing charges – such as occupational health and safety charges. This decision eliminated the distinction between corporate and individual defendants with respect to establishing prejudice resulting from a delay in getting to trial. The Court established a ceiling for delay and any further delay is considered presumptively unreasonable. It is likely to be difficult for the Crown to rebut this presumption.Going forward corporate defendants may have more success relying on their Charter section 11(b) rights. Read more here.
  8. Amalgamated Transit Union, Local 113 v Toronto Transit Commission (Use of Social Media Grievance) [2016] OLAA No 267: The first Ontario decision where a union challenged an employer’s use of social media to solicit customer complaints also occurred in July. The TTC was criticized for its use of social media and the arbitrator determined that its conduct was offensive and failed to protect employees. This case indicated to employers that even on social media there is a legal obligation to prevent harassment of employees. In 2017, employers should ensure that their social media presence takes into account the obligation to protect employees from harassment. Read more here.
  9. Paquette v TeraGo Networks Inc 2016 ONCA 618 and Lin v Ontario Teachers Pension Plan 2016 ONCA 619: In back to back decisions the Ontario Court of Appeal left employer bonus policies less effective in limiting payment on termination. The Court held that a term in a bonus policy requiring active employment, without more was insufficient to deprive an employee terminated without reasonable notice of compensation he or she would otherwise have received. The Court set out that it is necessary to specifically remove the entitlement to the bonus during the common law reasonable notice period. Employers should ensure that their bonus policies remain enforceable in light of these decisions. Read more here.
  10. Misetich v Value Village Stores Inc 2016 HRTO 1229: In September, the Ontario Human Rights Tribunal cast doubt on the appropriate legal test for assessing discrimination on the basis of family status. Prior to this decision it appeared settled that the Johnstone test would apply to family status.In this case, the Tribunal considered whether an employer had met the duty to accommodate for family status – specifically in relation to elder care. The Tribunal, in this decision, indicated that employees who can self-accommodate may still establish discrimination on the basis of family status. This is a departure from the Johnstone approach which required an employee to demonstrate that there were no reasonable alternatives for providing care by exploring self-accommodation options. Read more here.

Legislative Changes

  1. Accessibility for Ontarians with Disabilities Act (AODA): Although AODA has been in force since 2005, 2016 featured deadlines and preparation for upcoming compliance in 2017 for many employers. Read more here.
  2. Bill C-4 An Act to Amend the Canada Labour Code, the Parliamentary Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act: The Federal Government introduced legislation this year that would restore the card-based certification regime for federal employers. The Bill would also impose changes to the decertification process to protect bargaining agents when there is no collective agreement in place and when the union has acquired the right to strike. The threshold for a decertification application would also be raised from 40% to 50% +1. Read more here.
  3. Bill 70 – Building Ontario up for Everyone Act (Budget Measures), 2016: Bill 70 was an omnibus bill that had implications on the Occupational Health and Safety Act; the Ontario College of Trades and Apprenticeship Act, 2009; the Ontario Retirement Pension Plan Legislation Repeal Act; and the Pension Benefits Act. Read more here.
  4. Bill 132 – Sexual Violence and Harassment Action Plan, 2016: The Occupational Health and Safety Act was amended to increase an employer’s obligations with respect to harassment prevention and sexual harassment specifically. Bill 132 introduced definitions of workplace harassment and training requirements for employers. Read more here.
  5. Bill 163 – Supporting Ontario’s First Responders Act (Post-Traumatic Stress Disorder) 2016: This Act amended the Workplace Safety and Insurance Act, 1997 to create a presumptive entitlement to workplace safety and insurance benefits for first responders who develop PTSD. Read more here.
  6. Employment Insurance: The Federal Government made changes to the employment insurance program in the 2016 Budget. Effective January 1, 2017 the waiting period is reduced to one week. Read more about the changes here.
  7. Income Tax Folio – SC-F1-C2 – Retiring Allowances: The Canada Revenue Agency released a new interpretative guide on retiring allowances in 2016. This may affect how employers wish to pay out amounts on termination. Read more here.
  8. Minimum Wage in Ontario: On October 1, 2016 the minimum wage in Ontario increased from $11.25 to $11.40.
  9. Ontario Pension Plan Administration Corporation Act, 2015: In 2016, the Ontario Government announced its intention to repeal the ORPP and defer to the CPP after the Trudeau government introduced Bill C-26 An Act to Amend the Canada Pension Plan, the Canada Pension Plan Investment Board Act and the Income Tax Act to expand CPP benefits. Read more here.
  10. O Reg 370/16 under the Employment Standards Act: Personal Emergency Leave entitlements for employees of auto industry employers with 50+ employees have been changed to a two-fold system. Now the 10 day annual entitlement is replaced with seven personal emergency leave days and three days for the death of any specified family member. Read more here.

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