When is a “discretionary” bonus to be included in the statutory definition of “wages”? According to a 2016 decision of the Ontario Superior Court of Justice, Bain v UBS, 2016 ONSC 5362 (CanLII), affirmed by the Court of Appeal for Ontario in Bain v. UBS Securities Canada Inc., 2018 ONCA 190 (CanLII), when “there were definite factors on which it was based, including performance.”
The case highlights the tension between irregular payments and the obligation to pay vacation pay.
Does a termination clause that only allows an employer to terminate an employee without notice for “just cause” comply with the provisions of the Ontario Employment Standards Act, 2000?
In the case of Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, the Honourable Justice Carole J. Brown of the Ontario Superior Court of Justice held that it does not.
Should the payroll of employees outside Ontario be included in the calculation of the payroll under section 64 of the Employment Standards Act, 2000?
According to a decision of the Ontario Labour Relations Board, released late in 2018, Doug Hawkes v. Max Aicher (North America) Limited, 2018 CanLII 125999 (ON LRB), it is only Ontario-based employment and operations that is captured by section 3 and therefore section 64 of the ESA.
This decision is a victory for large, multijurisdictional employers with more limited operations in Ontario.
NOTE: This decision was set aside by a decision of the Ontario Divisional Court. For my summary of that decision see Pointe Finale! Calculation of "Payroll" for Severance Purposes Not Limited to Just Ontario: Divisional Court.
Will an arbitration clause in independent contractor agreement always be found to be illegal, if, notwithstanding that to which the parties ostensibly agreed, the worker can later allege that he is, in fact, an “employee”?
A cursory reading of the Court of Appeal for Ontario’s decision in Heller v. Uber Technologies Inc., 2019 ONCA 1 might lead those who do not practice in the area of employment law to conclude that the answer is “yes.”
I might not be so sure.
Can a company, which ostensibly deems all of its workers to be “independent contractors”, require those workers to arbitrate their issues, including the issue of whether or not they are, in fact, “employees”? Or, is such an agreement an attempt to contract out of the protections afforded to employees by virtue of the Employment Standards Act, 2000? In addition to, or in the alternative to, such a question, is such a clause “unconscionable”?
In the fist decision issued by the Court of Appeal for Ontario in 2019, Heller v. Uber Technologies Inc., 2019 ONCA 1, Ontario’s top court found that: (a) Uber’s arbitration clause amounts to an illegal contracting out of an employment standard; and (b) such clause is also unconscionable at common law.
Why does one think this ride isn’t over yet?
On November 22, 2017, the Ontario Government, then headed by Liberal premier Kathleen Wynne, passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22. For my summary of the changes to Ontario employment law brought into effect by Bill 148 see my post Bill 148 and Changes to the Employment Standards Act, 2000.
Nearly one year later to the day, November 21, 2018, the Ontario Government, now under a Conservative government, passed Bill 47, the Making Ontario Open for Business Act, 2018, S.O. 2018, C.14. The Bill received Royal Assent the same day. Unless otherwise stated, the changes to the ESA are effective as of January 1, 2019.
A major effect of Bill 47 was to undo much, but not all of what had been introduced by Bill 148.
So what changes as of January 1, 2019?
It is a well-known fact that employers must provide their employees with “reasonable notice” of the termination of their employment. But, is there a qualitative component as to what is “reasonable”, in addition to a quantitative component?
In the case of Wood v. CTS of Canada Co., 2017 ONSC 5695, the Honourable Justice John R. Sproat, ruled that there was. Later, and for reasons reported as Wood v. CTS of Canada Co., 2018 ONCA 758, the Court of Appeal for Ontario agreed that not all notice periods are created equal.
Should employees be allowed to use their Personal Emergency Leave (Employment Standards Act, 2000, section 50) to be absent from work in order to mourn the loss of a family pet? That is to say, should workers in Ontario be entitled to take so called “purreavement leave”?
For some the question will be ridiculous. To others, the answer “no” would be equally outrageous.
The question is not completely hypothetical either. According to a CBC news’ report, Quebec labour tribunal sides with employer in cat-bereavement spat, “A Quebec labour tribunal has sided with an employer who refused a woman's request to work from home on the day her cat died.”
That story got me thinking: Can workers in Ontario use their Personal Emergency Leave to mourn the loss of a family pet? If not, should they?
How much time off is an employee entitled to in order to look after a sick family member?
However, both employers and employees must be mindful of the fact that while Personal Emergency Leave was expanded as a result of Bill 148, and then removed as a result of Bill 47, there are several other forms of protected leave including:
When is “Canada Day”? How about “New Year’s Day” or “Christmas”? Like all good legal questions, the answer, it would appear, is “it depends.”
Pursuant to subsection 1(1) of the Employment Standards Act, 2000 the following days are designated as “public holidays”, to which certain rights and obligations apply:
Of those, the only calendar days that one could derive with any certainty (and without knowledge of what those days mean) are "Family Day" and December 26.
So when is “Canada Day” anyway?
Unless one has been living under a rock, and perhaps even if one has, it would be hard to have missed the controversy surrounding the decision of one Tim Horton’s franchise to make certain changes to the terms of its employees’ employment. Because the internet needs the opinion of one more person, let’s have a look at what happened and the legality (not necessarily the morality) of same.
As widely, and I mean widely, reported in the media, some time in early January 2018, Ron Joyce Jr. Enterprises Limited, a franchisee of Tim Hortons located in Cobourg, Ontario circulated a memorandum to its employees advising them as follows:
As one can plainly see, the employer made three changes to the terms of employment:
The legal question that arises from such facts is: Can an employer just do that? Distilling that question further, there are really four fundamental legal questions that need to be answered:
Since the story broke about a week ago, I have been arguing that the employer had the legal right to make unilateral, fundamental changes to the terms of the employee’s employment. I based that position on the decisions of the Court of Appeal for Ontario in both Wronko v. Western Inventory Service Ltd., 2008 ONCA 327 and Kafka v. Allstate Insurance Company of Canada, 2012 ONSC 1035 (Div Ct).
In Wronko, former Chief Justice of Ontario Warren Winkler wrote the following:
[24] The basic premise underlying the individual contract of employment is that it continues as long as both parties agree. In common parlance, the employment of persons is "at will"; that is, either party has a right to terminate the employment relationship without cause. However, the use of the expressions "at will" and "a right to terminate" must not obscure the reality that the employer's right to terminate an employee without cause is a breach of contract that carries with it consequences for the employer, both under statute and at common law. The use of these expressions also must not obscure the reality that an employer's unilateral change to a fundamental term of an employment contract constitutes a repudiation of the contract. An act of repudiation carries consequences, which depend on how the employee responds to the repudiation.
…
[33] In [Hill v. Peter Gorman Ltd., 1957 CanLII 393 (ON CA)], Mackay J.A. identifies three options that are available to an employee when an employer attempts a unilateral amendment to a fundamental term of a contract of employment. They may be summarized as follows.
[34] First, the employee may accept the change in the terms of employment, either expressly or implicitly through apparent acquiescence, in which case the employment will continue under the altered terms.
[35] Second, the employee may reject the change and sue for damages if the employer persists in treating the relationship as subject to the varied term. This course of action would now be termed a "constructive dismissal", as discussed in [Farber v. Royal Trust Co., [1997] 1 S.C.R. 846], although this term was not in use when Hill was decided.
[36] Third, the employee may make it clear to the employer that he or she is rejecting the new term. The employer may respond to this rejection by terminating the employee with proper notice and offering re-employment on the new terms.
As a lawyer in private practice, I have frequently relied on Justice Winkler’s comments in paragraph 36, “the employer may respond to this rejection by terminating the employee with proper notice and offering re-employment on the new terms” to assist employers in varying fundamental terms of employment.
In order to be successful, however, the employer must ensure that it has provided “reasonable notice” of the change to the employee.
To this point must be added what the Divisional Court said in Kafka:
[45] … a fundamental change does not amount to a constructive dismissal where the employer provides the employee with reasonable notice of the change.
In short, in my opinion, so long as: (a) the employer provides reasonable notice of the unilateral, fundamental change to the employee before the change takes effect; and (b) the final result remains legal, employers may make unilateral, fundamental change to the terms of an employee’s employment.
When I posited this position on twitter, some rebuffed, taking the position that statutory severance would have to be paid:
The difference is severance pay. When an employer changes terms of an #employment agreement that's tantamount to discharge, an employer must pay full severance pay and then re-hire employee under new terms. Loss of health and dental benefits for #MinimumWage workers is too much.
— David Michaels (@davidmichaels) January 7, 2018
First of all, I have previously covered off the position that, “When an employer changes terms of an employment agreement that's tantamount to discharge” – I am not suggesting that employers be coy about the discharge, I strongly encourage the actual termination of the employment agreement, so as to avoid any ambiguity as to the situation.
Second, to the suggestion that “severance pay” must be provided, it is first important to recall that, not all employees are entitled to severance pay.
Next, even if the employee has been employed for 5 or more years and the employer’s payroll exceeds $2.5 million a year, we must consider what constitutes severance of employment. Section 63 of the Employment Standards Act, 2000 provides the answer to that question:
63 (1) An employer severs the employment of an employee if,
(a) the employer dismisses the employee or otherwise refuses or is unable to continue employing the employee;
(b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response within a reasonable period;
(c) the employer lays the employee off for 35 weeks or more in any period of 52 consecutive weeks;
(d) the employer lays the employee off because of a permanent discontinuance of all of the employer’s business at an establishment; or
(e) the employer gives the employee notice of termination in accordance with section 57 or 58, the employee gives the employer written notice at least two weeks before resigning and the employee’s notice of resignation is to take effect during the statutory notice period.
At best, the only applicable circumstance would be a finding that a termination of an employment agreement constitutes the employer “dismissing” the employee. In my opinion, termination of an employment agreement does not necessarily constitute termination of the entire employment relationship. On this point, those interested would be prudent to consider the decision of the Court of Appeal for Ontario in Chapman v. GPM Investment Management, 2017 ONCA 227, about which I blogged in my post: Failure to Pay $300,000 Bonus a Breach of Contract Only and Not a Constructive Dismissal: ONCA.
Moreover, even if statutory severance must be paid, such payment constitutes a down payment against future obligations: ESA, ss 65(8), para 3. So it really doesn’t matter too much to the employer in any event.
So, at this point what we know is: employers legally can make unilateral, fundamental changes to the terms of their employee’s employment, so long as: (a) reasonable notice is provided; and (b) the result remains legal. There is some debate as to whether statutory severance must be paid to eligible employees, and while my answer is an unequivocal “no”, the good news for employers is that if the same is paid, then credit for such payment will be given at the time of actual dismissal.
As I have stated several times, the end result after the changes are made must be legal. The same begs the question of whether taking away an employee’s paid break is legal.
Shocking as it may be to some, there is no statutory obligation under the Employment Standards Act, 2000 to provide employees with any form of paid break.
The statutory obligation to provide a break is found in sections 20 and 21:
20 (1) An employer shall give an employee an eating period of at least 30 minutes at intervals that will result in the employee working no more than five consecutive hours without an eating period.
(2) Subsection (1) does not apply if the employer and the employee agree, whether or not in writing, that the employee is to be given two eating periods that together total at least 30 minutes in each consecutive five-hour period. 2000, c. 41, s. 20 (2).
21 An employer is not required to pay an employee for an eating period in which work is not being performed unless his or her employment contract requires such payment.
I have written further about the subject of paid breaks in my post: Catching a Break.
In the case of the Cobourg franchise, I actually take some issue with any shift shorter than 5 hours and whether the employer can impose a 15-minute, unpaid break. For the most part, however, this change is legal.
Similar to paid breaks, there is no statutory obligation for an employer to provide an employee with any form of health and dental benefits. Moreover, it is not illegal for an employer to require an employee to contribute towards the cost of same.
This change, while undeniably fundamental is clearly legal.
Let us presume for a moment that the changes made to the employees’ employment were significant enough to justify the employee in treating the employment relationship as at an end. If the employer failed to provide reasonable notice of the change, what can the employee do?
First of all, it is important to recall what Justice Winkler said in Wronko:
[34] First, the employee may accept the change in the terms of employment, either expressly or implicitly through apparent acquiescence, in which case the employment will continue under the altered terms.
[35] Second, the employee may reject the change and sue for damages if the employer persists in treating the relationship as subject to the varied term. This course of action would now be termed a "constructive dismissal", as discussed in [Farber v. Royal Trust Co., [1997] 1 S.C.R. 846], although this term was not in use when Hill was decided.
[36] Third, the employee may make it clear to the employer that he or she is rejecting the new term. The employer may respond to this rejection by terminating the employee with proper notice and offering re-employment on the new terms.
Put more simply, the employee’s options are these:
If the employee chooses to balk at the situation, then the employee’s first step is to leave employment, taking the position that he or she has been “constructively dismissed.” Constructive dismissal is a complicated legal doctrine that is much beyond the scope of this post. Those interested in this concept would be prudent to consider my post: Supreme Court of Canada Confirms that There are Two Paths to Constructive Dismissal.
In short, a finding that the employee has been constructively dismissed entitles the employee, at a minimum, to payment in lieu of notice. For more employees employed in minimum wage, retail or food-service positions, that may not amount to very much.
Some have suggested that the law should have been changed to prohibit employers from changing the terms of an employee’s employment. Respectfully stated, I am not sure how that can be accomplished so long as employers retain the right to terminate employment without cause.
On that point, if the Ontario government wanted to provide real protection to workers it would amend the Employment Standards Act, 2000 to make its termination provisions similar to those of the Canada Labour Code.
As the Supreme Court of Canada’s decision in Wilson v. Atomic Energy of Canada Ltd., [2016] 1 SCR 770, confirmed, most employees employed pursuant to the terms of the Canada Labour Code cannot have their employment terminated absent just cause.
Amending the ESA to mirror the Canada Labour Code would make it much harder for employers to not only terminate employment, but likely make fundamental changes to the terms of employment.
Although Bill 148 made several changes to the ESA, a full review of which you can find in my post Bill 148 and Changes to the Employment Standards Act, 2000, no changes were made to that law’s termination provisions.
If you are an employer and you are thinking about making changes to the terms and conditions of your employees' employment, such as by introducing new policies, better to speak with an experienced employment lawyer first.
If you are an employee and your employer has introduced new rules without providing notice of the change, or anything else, and you don't intend to abide by such rules, best to speak with a lawyer first.
Contact me. I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Photo Credit: (c) istock/MatthewSinger
Amongst the changes ushered in by the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22, formerly Bill 148, is the provision of three weeks of paid vacation after five years of employment.
But what counts in the computation of those five years? Are seasonal workers who work every season, but not continuously, going to add together their time? What about someone who left and then returned? How long is five years?
Amongst the changes ushered in by the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22, formerly Bill 148, is the provision of two paid days of “personal emergency leave”. For most people, this translates into two paid days of ‘sick leave’.
Although previously provided as subsection 50(7), newly minted subsection 50(12) of the Employment Standards Act, 2000 will provide that, “Subject to subsection (13), an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”
The catch is newly added subsection 50(13), which provides that, “An employer shall not require an employee to provide a certificate from a qualified health practitioner as evidence under subsection (12).” Read: an employer cannot require an employee to produce a doctor’s note in order to prove that the employee was entitled to take such paid sick leave / personal emergency leave.
This got me thinking, if employers cannot ask for a doctor’s note, then what qualifies as “evidence reasonable in the circumstances”.
On November 22, 2017, the Ontario Government passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22. The Bill received Royal Assent on November 27, 2017.
This post focuses primarily on the Employment Standards Act, 2000 and the implications to Ontario employment law, rather than labour law.
UPDATE: Nearly one year later to the day, November 21, 2018, the Ontario Government, now under a Conservative government, passed Bill 47, the Making Ontario Open for Business Act, 2018, S.O. 2018, C.14. A major effect of Bill 47 was to undo much, but not all of what had been introduced by Bill 148. For a summary of the changes made by Bill 47, see my post Bill 47 - The Making Ontario Open for Business Act, 2018.
How much paid bereavement leave is an employee entitled to in Ontario? And what constitutes “evidence reasonable in the circumstances” to demonstrate entitlement to statutory bereavement leave?
If you are reading this post, you are likely reading this at an unfortunate time in your life or that of someone close to you.
On May 27, 2017, I presented a paper to the County of Carleton Law Association’s annual solicitor’s conference titled “Mo Money Mo Problems (A Review of Termination Pay Obligations for Large Payrolls).” What follows is a copy of that paper.
I can think of no better way to introduce the subject of termination pay obligations for large payrolls than the lyrical hook to the song Mo Money Mo Problems by artist The Notorious B.I.G.:
I don't know what, they want from me
It's like the more money we come across
The more problems we see
The purpose of this paper is to canvass the subject of the obligation to pay statutory severance pay. As will be explained more fully below, pursuant to the provisions of section 64 of the Ontario Employment Standards Act, 2000, it is patently obvious that, notwithstanding anything Ol’ Dirty Bastard may have said about the subject, [“Look here, more money, more problems, my ass / You'se a naive cat, if you still believe that …”] the more money that employers come across, the more problems they’ll see.
(c) istock/BernardaSv
A typical term of any significant asset purchase agreement, which sees the employees of the vendor continue in employment with the purchaser, is that the purchaser will make offers of employment on substantially similar terms to the vendor’s employees. As is more fully explained in my post Continuity of Employment Following the Sale of a Business, pursuant to the provisions of Part IV of the Ontario Employment Standards Act, 2000:
If an employer sells a business or a part of a business and the purchaser employs an employee of the seller, the employment of the employee shall be deemed not to have been terminated or severed for the purposes of this Act and his or her employment with the seller shall be deemed to have been employment with the purchaser for the purpose of any subsequent calculation of the employee’s length or period of employment.
But what if one (or more) of the employees (unreasonably) refuses the purchaser’s offer? Is that employee still entitled to ‘severance’ pay? The answer will surprise most employers.
Can I interest you in an app that will almost invariably get you sued? I doubt it.
It has been my experience as a litigator that few people want to be involved in a lawsuit. It has also been my experience that most people do not want to break the law. Most employers are not interested in either wrongfully dismissing one of their employees or dealing with the fallout once they do. So why would anyone be interested in an app that almost invariably ensures both a wrongful dismissal and a letter from someone like me?
The unfortunate and frustratingly ironic reason that so many employers use an app almost guaranteed to get them sued is that the app is ostensibly designed to do the opposite.
So what app am I talking about? The “Severance Pay Calculator” put out by, of all people, the Ontario Ministry of Labour.
What will be the court’s censure for an employer’s unwillingness to accommodate its employees’ childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so? According to the Honourable Justice Susan E. Healey of the Ontario Superior Court of Justice, no less than $20,000.
In her reasons for decision reported at Partridge v. Botony Dental Corporation, 2015 ONSC 343, affirmed on appeal 2015 ONCA 836, Justice Healey threw the proverbial book at an employer who not only falsely alleged just cause for dismissal, but also engaged in acts of reprisal and violated one of its employee’s human rights after the employee had taken maternity leave.
In another good hard look at the consequences of messing with an employee’s right to return to work following maternity leave, (see also the case of Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM), a decision of the Ontario Small Claims Court, summarized by this blog in the post Ontario Small Claims Court Awards Human Rights and Punitive Damages after New Mom Constructively Dismissed,) Ontario’s judges continue to demonstrate that an employee’s right to take parental leave is pretty much sacrosanct.
Image ©iStock.com/DrPAS
If an employee dies due to a terminal illness (e.g. cancer), is his estate entitled to severance pay?
In the case of Estate of Cristian Drimba v Dick Engineering Inc., 2015 ONSC 2843 (CanLII), the Honourable Justice Douglas K. Gray of the Ontario Superior Court of Justice held that it is.
Death may put to an end many things, but an employee’s entitlement to severance pay would appear to not be one of them.
