In A Poisonous Work Environment?

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Bill 47 has Passed: Changes to Employment Standards Come into Effect on January 1, 2019

On November 21, 2018 Bill 47, the Make Ontario Open for Business Act (“Bill 47”), passed Third Reading and received Royal Assent. This comes quickly on the heels of Bill 47’s first reading, on October 23, 2018 and its second reading on November 12, 2018. Bill 47 has not undergone any significant changes in relation to the Employment Standards Act (“ESA”) since our first blog post which you can read about here.

There have been some changes made to Bill 47 since first reading in relation to the Labour Relations Act (“LRA”). One change is that the Ontario Labour Relations Board is no longer empowered to review the structure of existing bargaining units on the basis that they are no longer appropriate.

Changes made to the LRA came into effect when Bill 47 received Royal Assent on November 21, 2018. Employers will have a little more time to adapt to changes to the ESA as they are scheduled to come into force on January 1, 2019. Employers seeking to review their policies to ensure they comply with the latest changes should obtain legal advice in advance of January 1, 2019.

Below are some of the key changes Bill 47 will make to employment legislation:

Changes to the Employment Standards Act (“ESA”) Personal emergency leave – This leave will be removed in its entirety and replaced by three separate unpaid leaves: sick leave (3 days), family responsibility leave (3 days), and bereavement leave (2 days). The bill also removes the prohibition on employers requesting medical documentation to support entitlement to these leaves.

Minimum wage – Instead of increasing to $15.00/hour on January 1, 2019, the minimum wage will stay at $14.00/hour until at least October 2020 when it will be adjusted for inflation.

Scheduling – Many of the scheduling changes introduced by Bill 148, which were scheduled to come into effect on January 1, 2019, will be repealed, including: the requirement for employers to respond to an employee’s request for changes to their schedule or work location; an employee’s right to refuse a request to work or be on call with less than 96-hours’ notice; the on-call pay provisions; and, the shift cancellation pay provisions.

Please note: under Bill 47 employers will still be required to pay employees who regularly work more than three hours for a minimum of three hours of work even if they work less than three hours.

Changes to the Labour Relations Act (“LRA”)

Lists of Employees – Employers will no longer be required to provide employee lists to trade unions who demonstrate at least 20% support in the proposed bargaining unit.

Remedial Certification – The pre-Bill 148 test and pre-conditions for the Ontario Labour Relations Board (“OLRB”) to certify a union for employer misconduct will be reinstated.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.

Originally posted on MalcolmMacKillop.com.

Ontario Human Rights Tribunal finds Terminating Employee Benefits at Age 65 is Unconstitutional

As a result of a recent decision out of the Ontario Human Rights Tribunal (the “Tribunal”), employers may no longer be able to exempt employees age 65 or older from their workplace benefits policies. Until this point, s. 25(2.1) of the Human Rights Code (the “Code”), in conjunction with certain provisions of the Employment Standards Act, 2000 (the “ESA”), has allowed employers to terminate an employee’s benefits when they reach the age of 65. In Talos v. Grand Erie District School Board, 2018 HRTO 680 (“Talos”) the Tribunal held that an employer could not rely upon s. 25(2.1) of the Code to deny benefits under a workplace benefit policy to employees age 65 and over, as the provision was an infringement of the Canadian Charter of Rights and Freedoms (the “Charter”). While the legislation remains intact, employers will no longer be able to rely upon s. 25(2.1) as a defence to a claim of age discrimination before the Tribunal.

Talos was an interim decision that addressed the availability of s. 25(2.1) as a defense to the applicant’s age discrimination claim. The applicant, George Talos (“Mr. Talos”), was a teacher for the Grand Erie District School Board (the “School Board”). His extended health, dental and life insurance benefits were terminated when he reached age 65 although he continued to work on a full time basis. Mr. Talos and his family were greatly affected by the termination of his benefits, as his wife was suffering from a serious illness that required ongoing medical treatment. Mr. Talos filed an application before the Tribunal seeking compensation for the lost benefits and general damages for age discrimination. The School Board sought to rely on s. 25(2.1) as a complete defense to Mr. Talos’ allegation of discrimination. Mr. Talos alleged that s. 25(2.1) should not be available as a defense because the provision infringed his equality rights under s. 15 of the Charter.

The Tribunal first considered whether s. 25(2.1) infringed s. 15 of the Charter, applying the two-part test from the Supreme Court of Canada decision in Kahkewistahaw First Nation v. Taypotat, [2015] 2 S.C.R. 548. The test states that to find an infringement, a party must show:

the law creates a distinction based on an enumerated or analogous ground; and the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.

The Tribunal found that s. 25(2.1) infringed upon s. 15 of the Charter. Applying the first prong of the test, the Tribunal found that the provision distinguished between workers under the age of 65 who are members of workplace group benefits plans, and those who are 65 and older who perform the same work but are not entitled to benefits. Under the second prong, the Tribunal found that s. 25(2.1) creates a disadvantage for employees 65 and over with respect to their health, financial and job security. The Tribunal also found that s. 25(2.1) had the effect of reinforcing unfitting stereotypes that employees 65 and over are less deserving of compensation and equality protections than younger workers. Having found a breach of s. 15, the Tribunal then considered whether s. 25(2.1) could be saved as a reasonable limit under s. 1 of the Charter. To determine this, the Tribunal applied the Supreme Court test from R. v. Oakes, [1986] 1 S.C.R. 103, which requires that a party seeking to uphold a reasonable limit of a Charter right must show:

the impugned statute seeks to achieve a pressing and substantial objective; and the means adopted to obtain this objective are proportional, which is analyzed in three elements: rational connection – is there a rational connection between the distinction made by the law and the state’s objective? minimal impairment – can the legislative goal be achieved in a way that is less harmful to the affected Charter rights? proportionality – are the detrimental effects of the law on the equality rights of the group proportionate to the legislative objective?

Under the first prong, the Tribunal found that the legislative objective of s. 25(2.1) was to preserve the financial viability of workplace benefits plans after the Code was amended in 2006 to prohibit mandatory retirement for employees age 65 and over. This was a pressing and substantial objective under the test.

Under the second prong, the proportionality test, the Tribunal found that s. 25(2.1) was rationally connected to the legislative objective, but ultimately failed at the minimal impairment stage. The Tribunal found that s. 25(2.1) had been enacted on the assumption that the abolition of mandatory retirement would affect employers’ ability to maintain financially viable benefit plans for their employees. Relying on expert reports, the Tribunal found that there was now empirical actuarial evidence that benefits plans could be maintained for employees well beyond age 65 without financial hardship. Accordingly, the Tribunal found that there were less impairing means by which the legislative objective could be achieved, namely permitting employers to provide lesser benefits to employees aged 65 or older where there is actuarial evidence to support the age-based differentiation, as is currently allowed under the ESA regulations for all other age-based differentiations in benefit coverage.

The Tribunal found that s. 25(2.1) infringed the s. 15 Charter rights of Mr. Talos and other employees over the age of 65 and could not be saved as a reasonable limit under s. 1. Therefore, the School Board could not rely upon s. 25(2.1) as a defence to Mr. Talos’ claim of age discrimination.

Final Thoughts The Talos decision effectively renders s. 25(2.1) of the Code a nullity before the Tribunal. While the provision has not been struck down and remains the law in Ontario, employers will not be permitted to use 25(2.1) as a defense before the Tribunal. In its decision, the Tribunal made clear that the decision did not address long term disability insurance, pension plans and superannuation funds. However, with respect to all other benefits, employers now need to consider whether to avoid broad “carve-out” exemptions for employees age 65 and over, and instead differentiate benefit coverage based of actuarial evidence, which is the standard permitted for all employees under the ESA regulations.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.

The Most Famous Places In Toronto, Canada

Toronto, Canada continues to be known as a vibrant, exciting city in Canada, and is showing no signs of slowing down in the future. From incredible tourist attractions, like the CN Tower, to beautiful outdoor parks like Queen’s Park, Toronto is both a great place to visit and a great place to live. As the city continues to grow in popularity, so will some of the city’s more famous areas and attractions.

Royal Ontario Museum Known for its unique exterior and premier artwork, the Royal Ontario Museum is an experience that tourists won’t want to miss. The museum carries a substantial art collection, which features approximately 13 million pieces of art, and 40 gallery and exhibition spaces. The Royal Ontario Museum is Canada’s biggest museum and continues to attract tourists every year with its incredible, expansive collection.

Rogers Centre As one of Toronto’s largest domed sports arena, the Rogers Centre is known for its unique structure. The Centre was built in 1989, and became known for its sliding roof, giving teams the opportunity to play in some of Toronto’s most pleasant weather. While most sports can be played in the Centre, it acts as the home to Toronto’s own Blue Jays baseball team. Additionally, concerts and large events can be held there, given its incredible size and capacity. The Rogers Centre is located directly by the famous CN Tower in downtown Toronto.

Casa Loma Casa Loma is a historical museum in Toronto, close to Niagara Falls. It stands tall, with a similar look to a medieval castle, and brings along a rich history. The Casa Loma has nearly 100 rooms and 36 bathrooms, with each room filled with a history of European splendor. In addition to its massive size, the castle is complete with a secret passage, an 800-foot tunnel, and estate gardens spanning across five acres. Get a sense of how others lived by exploring this incredible gem.

St. Lawrence Market The St. Lawrence Market features a space where vendors can sell their own food products, flowers and other items to the general public. The market has been open for nearly 2010 years, and features 120 different vendors. Visitors can get anything from art pieces to meat and seafood, making it a popular attraction for tourists and residents alike. Since being restored in 1967, the market has become a popular spot for a variety of events, including concerts and television shoots.

How does telecommuting affect employers? Here’s how:

Checking it Twice: A List of 12 Legal Considerations for the Holidays | Malcolm MacKillop | Professional Overview

Malcolm MacKillop shares a blog covering legal considerations for the holidays,

Malcolm MacKillop shares a recent blog.

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