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2023 Year In Review: A Look Back at the Top Cases and Key Legislative Changes that Impacted your Workplace

2023 was an interesting year with the continuation of lingering COVID-19 issues as well as other exceptional decisions in the area of labour and employment law. Throughout the year, CCPartners has been keeping employers updated on these important labour and employment developments through our Employers’ 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 over the past year, along with links to our original blogs.

Legislative Changes

• The Ministry of Labour, Immigration, Training and Skills Development amended the Occupational Health and Safety Act effective June 1, 2023 to require certain employers in Ontario to provide naloxone kits in the workplace. 
• On October 26, 2023, Bill 79, Working for Workers Act, 2023 received Royal Assent and came into force. It provided for enhanced protections to vulnerable workers in Ontario through the amendments of various employment-related statutes including enhanced leave protection for military reservists, remote worker entitlement to mass termination notice, enhanced licensing requirements for Temporary Help Agencies under the Employment Standards Act as well as increased maximum fine limit under the Occupational Health and Safety Act for corporations, amongst others.
• As of July 9, 2023, a number of amendments were made to the Canada Labour Code, including reimbursement of reasonable work-related expenses, and providing employees with a copy of any material the Minister makes available containing employers’ and employees’ rights and obligation. 
• On November 9, 2023, Bill C-58 was introduced into the House of Commons and is currently making its way through second reading. This Bill will only apply to federally regulated workplaces and is expected to make amendments to the prohibition of replacement workers during strike/lockout, and the maintenance of an activities agreement between union and employer prior to lockout.
• In compliance with the Health and Safety Inspection Compliance Plan 2023-2024, Ontario employers in the health care, industrial, mining and constructions sectors should expect to see an Occupational Health and Safety inspector at their door anytime between June 2023 to March 2024.
• The WSIB in early 2013 released a Draft Communicable Diseases Policy regarding WSIB’s entitlement guidelines for claims for communicable illnesses, including COVID-19 illness. This draft has made its way into the Operational Policy Manual effective December 1, 2023 and applies to all claims for communicable illness with an accident date on or after December 1, 2023.

Top Labour and Employment Cases of 2023

• Oostlander v Cervus Equipment Corporation, 2023 ABCA 13: The Alberta Court of Appeal confirmed the trial judge’s decision that declared that any CERB payments received by an employee cannot be deducted from their wrongful dismissal damages.
• Besse v. Reach CPA Inc, 2023 BCCRT 27: The British Columbia Civil Resolution Tribunal upheld a just cause dismissal resulting from “time theft” in finding the employee engaged in serious misconduct causing an irreparable breakdown in the employment relationship.
• Park v. Costco Wholesale Canada Ltd., 2023 ONSC 1013: The plaintiff employee deleted a website that he had created during business hours for his department when asked to grant management access to the website and change the ownerships settings following his re-assignment to a different department. The Court found that the employer had cause to terminate the employee’s employment because the employee committed 4 deliberate acts of misconduct including the deletion of the website, the sending of 2 insubordinate emails to management and the deletion of the website for a second time. The Court held that the employee’s actions constituted willful misconduct and dismissal for cause was an appropriate response from the employer.
• Croke v. VuPoint Systems Ltd., 2023 ONSC 1234: This is one of the first cases of its kind in which the Ontario Court found that an employee’s refusal to comply with a mandatory COVID-19 Vaccination Policy can constitute frustration of contract, thereby disentitling the employee to wrongful dismissal damages.
• Celestini v. Shoplogix Inc., 2023 ONCA 131: The Ontario Court of Appeal upheld the “changed substratum” doctrine to invalidate a termination provision in a written employment agreement. The Court held that since the signing of the employment agreement, the terms and conditions had substantially and materially changed, including new responsibilities and an increase in remuneration for the employee. As a result, the employee was entitled to a longer notice period than the termination provision in the employment agreement.
• Teamsters Canada Rail Conference v VIA Rail Canada Inc., 2023 CanLII 18498 (CA SA): In this arbitral decision, the company dismissed an employee with 19 years’ service for not providing proof of vaccination against COVID-19. The arbitrator found that the dismissal was disciplinary, not administrative and the company did not follow the process for implementing discipline as outlined in the collective agreement. Accordingly, the disciplinary action was deemed to be void and the employee was reinstated.
• Teljeur v. Aurora Hotel Group, 2023 ONSC 1324:  This case is a good reminder for employers regarding proper conduct when dismissing employees. In this decision, the Court awarded $15,000 in moral damages to the employee due to the employer’s breach of good faith obligations and fair dealing during the termination of employment.
• Pham v. Qualified Metal Fabricators Ltd., 2023 ONCA 255: In this decision, the employer placed an employee on temporary layoff due to financial losses caused by the COVID-19 pandemic, and kept extending the period for about 35 weeks. The employee commenced a claim for constructive dismissal. The employer argued that the employee condoned the layoff and the claim for constructive dismissal should be dismissed. In upholding the employee’s appeal, the Court of Appeal rejected the employer’s position in the circumstances and the matter was remitted back to lower Court to determine the plaintiff’s entitlements arising from the constructive dismissal.
• Tan v. Stostac Inc., 2023 ONSC 2121: In this decision the principles set out in Waksdale v. Swegon North America were reinforced. Here, an employee’s employment was terminated as a result of adverse economic conditions and the employee brought a wrongful dismissal action. The Court determined that the “just cause” provision of the employment contract was unenforceable and therefore the entire termination provision was held to be unenforceable, including the without cause provision relied on at the time of dismissal.
• Imperial Oil Limited v. Haseeb, 2023 ONCA 364: The Court of Appeal found that it was discriminatory to withdraw a job offer from an incumbent due to his citizenship status of not being a Canadian citizen or permanent resident. This decision shows the importance of complying with the Human Rights Code in all aspects of employment, including the recruitment phase.
• Service Employees International Union, Local 1 Canada v. Evergreen Retirement Community, 2023 CanLII 48585 (ON LA): This decision is a good example of the finality of settlements made between parties. The parties in this case entered into a settlement agreement with respect to several matters including this grievance, however, despite the settlement, the union referred this matter to a hearing. The arbitrator found that parties must be held to their agreements except for exceptional circumstances such as mutual mistake or frustration.  The arbitrator found that in this case the grievance was validly withdrawn and the settlement agreement must be given its full effect.
• Shalagin v. Mercer Celgar Limited Partnership, 2023 BCCA 373: An employee revealed at the Human Rights Tribunal that he had surreptitiously recorded numerous personal training sessions with supervisors and HR team at the workplace. While the employee’s employment was initially terminated without cause, the employer amended its pleadings at the Supreme Court and asserted that they had after-acquired cause to terminate employment. The Court of Appeal agreed with the employer and trial judge and was convinced that recording private conversations was underhanded and would be regarded by most employers as misconduct undermining the trust relationship between the parties.
• Cecchetto v. Canada (Attorney General), 2023 FC 102: This is an appeal from the Social Security Tribunal which found that the applicant was not entitled to employment insurance benefits when his employment was terminated for failure to comply with the employer’s Vaccination Policy. The Federal Court agreed with the Tribunal and reiterated that an employee who loses their job due to misconduct, in this case referring to the employee’s violation of an employment rule, is not entitled to receive EI benefits when the breach was made willfully.
• Lakeridge Health v CUPE, Local 6364, 2023 CanLII 33942 (ON LA): This arbitral decision concerns policy grievances and individual grievances arising from the hospital’s mandatory COVID-19 Vaccination Policy. In this decision, the arbitrator concluded that the Vaccination Policy was reasonable in all respects challenged including the termination of employees for non-compliance to the Policy, however found that it was unreasonable to have imposed the terminations earlier than four weeks of placing employees on unpaid leave.

CCP will continue to blog on new decisions and legislative changes affecting workplaces in Canada in 2024.  As always, the lawyers at CCPartners are always happy to help with any workplace questions or concerns you may have regarding your business!