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2020 IN REVIEW: A LOOK BACK AT THE TOP CASES AND KEY LEGISLATIVE CHANGES THAT IMPACTED YOUR WORKPLACE

It may be modest to say that 2020 was an eventful year for employers with significant changes to workplace legislation both provincially and federally, and numerous noteworthy decisions. Several legislative amendments are meant to be temporary, though employers will undoubtedly feel the effects for years to come – specifically with respect to workplace health and safety modifications.

Throughout the year, CCPartners has kept you up-to-date on these developments through our Employers’ Edge blog and our Lawyers for Employers webinars and podcasts. We are now happy to provide a recap of our top cases and legislative changes of the past year, along with links to our original blogs. Enjoy!

Legislative Changes

• On March 23, 2020, in response to the declared state of emergency, the Ontario Government ordered the mandatory closure of all non-essential workplaces in an effort to contain the spread of COVID-19. This was the beginning of a slew of new legislation which largely shaped the rest of 2020 and possibly beyond;
  
  
• Federal legislation was enacted to implement the Canada Emergency Wage Subsidy (CEWS) for employers facing financial challenges to keep employees on payroll and recall those employees who had already been laid off as a result of COVID-19. The CEWS allowed eligible employers to access a weekly subsidy calculated by the number and type of eligible employees they have, and the amount and type of pay they received before and during the crisis;
  
  
• The government introduced many more programs to help employers bridge financing during the pandemic. Among these programs was the Large Employer Emergency Financing Facility (LEEFF) which is open to large for-profit businesses (including airports) with annual revenues in the order of $300 million or more annually, excluding the financial sector, but also including certain non-profit organizations. As well, the government created the Business Credit Availability Program (BCAP) to support mid-size companies with loans of up to $60 million per company. Canada also announced a rent relief for small businesses. The Commercial Rent Assistance (CERA) program was designed to help small businesses cover their rent during the early parts of the pandemic;
  
  
• O. Reg 228/20: Infectious Disease Emergency Leave (IDEL) was enacted to temporarily amend the treatment of layoffs under the Employment Standards Act during the COVID-19 pandemic and, in doing so, employers avoided the wave of deemed terminations that had been looming. Under the IDEL, employers of non-union employees were given the power to temporary layoff employees or reduce their hours for reasons related to COVID-19 without triggering a statutory termination of employment.The “deemed IDEL” was extended to January 4, 2021, and then again to July 3, 2021.
  
  
• Bill 195 Reopening Ontario (A Flexible Response to COVID-19) Act, 2020: The declared emergency in Ontario came to an end on July 24, 2020. This put an end to certain job-protected leaves of absence under the Employment Standards Act but gave way to the Infectious Disease Emergency Leave to temporarily remain in the event of workplace closures and absences during COVID-19;
  
  

•  Ontario increased the general minimum wage from $14.00 to $14.25;

• Bill C-65: Introduced new regulations under the Canada Labour Code with respect to workplace harassment and violence. Under this legislation, Federal employers are required to develop a workplace harassment and violence prevention policy, conduct a workplace assessment to identify harassment and violence risk, undergo mandatory workplace harassment and violence training, implement the resolution process as set out in the Regulations for any workplace harassment and violence complaints, and keep records for complaints;
  
• O. Reg 364/20: The Ontario Government mandated screening procedures at workplaces, requiring employees to answer standard question relating to COVID-19 symptoms and potential exposure; 

• The Federal Government announced that the Canada Emergency Response Benefit (“CERB”) would be transitioned to either Employment Insurance (“EI”) or the Canada Recovery Benefits. In accordance with this, the EI program was simplified. Normally the number of insurable hours that a claimant must work to qualify for EI is determined by the unemployment rate in their region. This was changed to a 13.1% unemployment rate applying to all regions across Canada. The Canada Recovery Benefits providing relief to those who are ineligible for EI;
  
  
• O. Reg 364/20 update: The Ontario government made face coverings mandatory in indoor businesses, and limited the number of people who could be in certain businesses at any given time.

Top Labour and Employment Cases of 2020

• Canadian Union of Postal Workers v Foodora Inc. d.b.a. Foodora, 2020 CanLII 16750 (ON LRB): the Canadian Union of Postal Workers got one step closer to being certified as the bargaining agent for the various couriers of food delivery company Foodora working in Toronto and Mississauga. The Ontario Labour Relations Board found that the control exerted by Foodora over its couriers led to the conclusion that they are in fact “dependent contractors”: a category of worker that has existed in labour law for over 50 years and is, crucially, akin to having employment status for the purpose of the Labour Relations Act. This decision will undoubtedly have widespread consequences on the formation of our “Gig Economy”.

• Waksdale v Swegon North America Inc., 2020 ONCA 391: the Court of Appeal kept employers on edge as they ruled that even legally enforceable “without cause” termination provisions can be invalidated by unenforceable “with cause” termination provisions within the same contract. For the time being this decision has changed the landscape of reasonable notice litigation with employees claiming that virtually every termination provision in existing contracts is unenforceable because it is coupled with an invalid “with cause” termination provision. This decision has been appealed to the Supreme Court of Canada who has not yet released a ruling. In the meantime, employers have been holding their breath and reminding themselves that Waksdale was decided on case-specific facts that will not necessarily bind all future court decisions.

• Uber Technologies Inc. v. Heller, 2020 SCC 16: The Supreme Court of Canada considered the enforceability of a mandatory arbitration clause in Uber’s standard service agreement with its drivers.The arbitration clause provided that any complaints by a driver against the company were to be heard by a private Arbitrator in Amsterdam. The SCC dismissed Uber’s appeal, finding that the arbitration clause was unconscionable and therefore invalid, allowing the class action to proceed in Ontario Superior Court.
  
  
• United Steelworkers Local 2251 v Algoma Steel Inc., 2020 CanLII 48250 (ON LA): An Arbitration found that an employer’s policy requiring all employees who cross the US border to self-isolate even if they fell under the Federal Quarantine Act regulatory exemptions was an unreasonable policy. The Arbitrator concluded that the employer should have considered alternate work arrangements or a reassignment to an area where the Grievor would have less contact with his co-workers. The Arbitrator also noted that the employer’s increased sanitizing, social distancing and PPE policies would significantly reduce the risk that the Grievor could expose his co-workers to COVID-19.Finally, the Arbitrator considered that it would be reasonable for the parties to place restrictions on the Grievor’s travel to any COVID “hot spots”.
  
  
• Levi Strauss & Co. v Workers United Counsel Canada, 2020 CanLII 44271 (ON LA): An employee’s racist outburst was cause for dismissal, even though the employee was a member of a union with 23 years of experience and a clean record. The employee used anti-Black slurs in an altercation with a co-worker. When the Black co-worker was terminated within his probationary period, the Grievor reveled in it, and took credit for “getting rid of” the employee, further using racist slurs among his other co-workers. The employer took decisive action in firing the Grievor on a just cause basis, relying on its workplace violence and harassment policy, which among other things, prohibited “Racial/Ethnic Harassment” which included “derogatory racial or ethnic slurs”. The Arbitrator concluded that returning this employee to work would compromise the rights of the other employees who deserve to work in an environment that is free from the risk of harassment on the basis of race. Arbitrators have shown less leniency for racism in the workplace which is a welcome trend for employees and employers alike and termination is now presumptive (although not definite) for this sort of misconduct.
  
  
• Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), [2020] O.L.A.A. No. 162: An airport employee attended work after getting a COVID-19 test, before receiving her results of that test. It turns out she was positive for the virus. Her employment was terminated for failing for failing to follow the employer’s and public health’s guidelines. Those guidelines mandated that employees with pending COVID-19 tests are not to attend work. Her termination was upheld at arbitration and the Arbitrator noted the seriousness of the pandemic and following guidelines to stop the spread in workplaces. This case demonstrated how serious Arbitrators are about employee’s requirements to uphold health and safety guidelines, particularly with respect to COVID-19.