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2021 IN REVIEW: A LOOK BACK AT THE TOP CASES AND KEY LEGISLATIVE CHANGES THAT IMPACTED YOUR WORKPLACE

No one could have anticipated at the outset of the COVID-19 pandemic in March, 2020 that it would so profoundly affect the workplace for the balance of 2020 and all of 2021. As we enter 2022 and the third year of the pandemic, we look back on how many of the leading legislative and judicial decisions of the past year were influenced by the pandemic. CCPartners has been there every step of the way to support employers by keeping you up-to-date on employment developments through our Employer’s Edge blog and our Lawyers for Employers webinars and podcast. We are now happy to provide a recap of the top cases and legislative changes of the past year, along with links to our original blogs. From all of us at CCPartners we wish you a happy New Year as we enter a brighter 2022. Enjoy!

Legislative Changes

• On April 29, 2021 Ontario gave royal assent to a new paid Infectious Disease Emergency Leave (IDEL) through Bill 284, COVID-19 Putting Workers First Act, 2021. The Bill temporarily provides employees with up to three (3) days of paid infectious emergency leave and employers are entitled to reimbursements for payments made to an employee for up to $200 a day per employee. The employee’s entitlement period is retroactive to April 19, 2021 and has been extended until July 31, 2022.
• To combat the COVID-19 spread within Ontario, the provincial government introduced a three-step plan named the “Roadmap to Reopening” on May 20^th, 2021 which is based on Province-wide vaccination rates and improvements in public health indicators (e.g., ICU occupancy and COVID-19 case rates). On August 17, 2021 Ontario paused the reopening plan while in step three due to the risk of the Delta variant of COVID-19 and new measures were created to combat this novel strain of the virus. And just a few days ago we went back into a modified Step 2 Lockdown (AMJ Brandon’s new blog here pls)
• On May 31, 2021 Ontario became the first province to issue a directive making it mandatory for staff at long-term care homes to have COVID-19 immunization policies for staff. The policies outline and require that staff must either prove that they are fully vaccinated against the COVID-19 virus or attend an educational session about the risk of opting out.
• On June 2, 2021 Ontario’s third Stay-At-Home order expired after being enacted during the third wave of the pandemic on April 7, 2021.
• Ontario passed new Regulations under the Occupational Health and Safety Act (OHSA) which came into effect on July 1, 2021. These Regulations made a number of changes to the reporting and notice requirements which resulted in simplified reporting structures and streamlined processes for the OHSA.
• The Government of Canada (GoC) announced on August 13, 2021 that all federal public servants and employees working in federally regulated sectors must be vaccinated no later than the end of October 2021.
• On August 17, 2021 the provincial government took further action and announced that employers in certain industries would be required to implement vaccine policies building on precedent set by the GoC for federal workers. These Vaccination Policies were targeted at high-risk settings such as hospitals, long-term care homes, post-secondary institutions, licensed retirement homes, women shelters and group homes.
• The Ontario Human Rights Commission (OHRC) issued a policy statement on vaccine mandates stating that in vaccine mandates are generally permissible. While the statements are not a legislative change and do not have the force of law, they offer useful insight on potential human rights claims associated with vaccine mandates.
• Starting this past year, Canada passed legislation establishing a new federal statutory holiday entitled, The National Day for Truth and Reconciliation. The new holiday is observed on September 30 by federally-regulated employees and many provinces in an effort to commemorate the legacy of residential schools.
• On October 22, 2021 the Ontario government announced “A Plan to Safely Reopen Ontario and Manage COVID-19 for the Long Term” in order to lift remaining public health and workplace safety measures by March 2021. The plan is currently on pause until further notice due to concerns of the Omicron variant.
• Ontario gave royal assent on Thursday, December 2, 2021 to the Working for Workers Act, 2021 which was intended to create a better work-life balance for employees. The Act makes a number of amendments to current legislation such as banning non-compete clauses and imposing a requirement on employers to create a “right to disconnect” policy.
• On December 17, 2021 the Government of Canada gave royal assent to Bill C-3 which amended the Criminal Code and the Canada Labour Code to provide ten days of paid sick leave to all federally regulated private sector employees and enhance protections for health care workers and those accessing health services. The legislation also amends the Canada Labour Code to add eight weeks of unpaid bereavement leave for employees who lose a child or experience a still birth.
  
  Top Labour and Employment Cases of 2021
• Coutinho and Ocular Health Centre Ltd: in an attempt to protect employees and employers during the pandemic the Ontario government created IDEL. However, since it was created under the Employment Standards Act (ESA) it does not necessarily affect employee’s common law rights which means that employees may still be able to make a constructive dismissal claim for being placed on a job-protective leave of absence. This decision set a bad tone for employers by finding that an employee who was placed on IDEL had been terminated and was entitled to common law damages for wrongful dismissal.
• Taylor v. Hanley Hospitality Inc: this case also addressed whether employees could claim constructive dismissal at common law while on job-protected leave but came to the opposite conclusion in finding that the decision in Coutinho was not binding and wrongly applied the law. This case is currently being appealed to the Court of Appeal.
• Fogelman v. IFG: To further confuse the issue, this decision found that IDEL layoffs are constructive dismissals. This decision went even further to find that the damage award should not be reduced by CERB payments.
• Morningstar v. WSIAT, 2021 ONSC 5576: the Divisional Court partially overturned a decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) that had barred a constructive dismissal claim based on alleged workplace harassment. Morningstar makes it clear that employees are rarely affected by the WSIA statute-barring their claims. The only claims that would be statute-barred would be tort claims, such as actual assault or a workplace injury.
• UFCW Canada Local 333 and Paragon Protection Ltd: this case was one of the first decisions in a trilogy to be released in Ontario on mandatory vaccination policies. The Arbitrator upheld the vaccination policy finding that the Policy complied with the management rights clause in the Collective Agreement and effectively balanced the rights of employees who did not want to be vaccinated while also creating a safe workspace. This case signaled to employers that a reasonable, properly-considered and well-drafted Vaccination Policy can, and will, be upheld. Subsequent cases that challenged mandatory vaccination policies, Power Workers’ Union and Electrical Safety Authorityand Ontario Power Generation and the Power Workers Union, further reinforced that a vaccination policy will be upheld if it is reasonable and well-drafted but not if it is unreasonable, over-reaching and/or violates the Collective Agreement.
• Yee v Hudson’s Bay Company, 2021 ONSC 387: in January 2021 an Ontario court was asked to decide whether the pandemic should be considered when calculating their period of reasonable notice. The court found that COVID-19’s impact on the job market should be considered when determining reasonable notice, but only for terminations that occurred during the COVID-19 pandemic. Terminations that occurred before the pandemic began would not.
• Wojdan et al. v Canada (Attorney General), 2021 FC 1341: this case is a decision from the Federal Court which found that a mandatory vaccination policy does not force employees to get vaccinated. Justice Fothergill came to this finding stating that employees are not forced to get vaccinated but are being forced to choose between getting vaccinated and continuing their employment or remain unvaccinated and lose their income.
• Yates v. Langley Motor Sport Centre Ltd, 2021 BCSC 217: in this decision the British Columbia Supreme Court had the opportunity to weigh in on if Canada Emergency Response Benefit (“CERB”) payments received by an employee can reduce wrongful dismissal damage awards. Earlier in the year the Ontario Court in Iriotakis v. Peninsula Employment Services Limited found that CERB payments should not be treated as income for the purpose of mitigation. However, in Yates the British Columbia Supreme Court found that the CERB payments would not have been payable to the former employee had she not been terminated and chose to reduce the award.
• Ontario (Labour) v Sudbury (City): on December 9, 2021 the Supreme Court of Canada (SCC) granted leave to hear this matter. The decision by the Court of Appeal had a number of concerning implications for employers as it determined that an “employer” who engages a “constructor” for a project may have broad OHSA obligations, beyond that of their own workers, if they have one of their own employees engaged on the project. Typically, when a “owner” of a project engages a general contractor as a “constructor” the contractor becomes liable for the day-to-day OHSA requirements. This was a concerning decision as it was a stark departure from how the OHSA scheme of “owners,” “constructors,” and “employer” duties have traditionally been applied on construction projects. Hopefully we will hear a more favorable decision from the SCC before the end of 2022!

CCP will continue to blog on new decisions and legislation affecting workplaces in Canada in 2022.   Some of the decisions above have been appealed to higher courts and we will continue to update you on the status of those decisions.   For all your vexing workplace questions CCP will continue to be available to provide practical, timely advice and we thank you for continuing to support our blogs!