Month: October 2023

If you are a working parent and are struggling to balance workplace and childcare obligations, knowing about any entitlements you have can help alleviate some of that burden. There are many instances where child-care obligations conflict with work and limit your ability to satisfy the expectations of both your employer and your children. Ontario’s Employment Standards Act outlines when working parents can take a leave of absence from work to care for their children. In addition to sick leave, which totals only 3 days per year, pregnancy and parental leave are likely the most widely known and frequently used types of protected leave. For workers who have recently become parents, and have worked at least 13 weeks with their employer, both pregnancy and parental leave are available to care for newborns. Pregnancy leave can last up to 17 weeks, and parental leave can last up to 63 weeks (61 weeks if pregnancy leave is also taken). Other than pregnancy and parental leave, the ESA also protects several other types of leave, including:

• Family Medical Leave,
• Family Caregiver Leave,
• Critical Illness Leave,
• Child Death Leave,
• Crime-related Child Disappearance Leave,
• Domestic or Sexual Violence Leave,
• Family Responsibility Leave, and
• Bereavement Leave.  

Every type of leave requires different lengths of employment prior to being entitled to leave, ranging from 2 weeks to 6 months. While the maximum length of each leave varies, each of the listed types of leave are all provided to workers without pay. Furthermore, many of these other types of leave revolve around either serious medical conditions, death, or criminal circumstances. Consequently, despite these various types of leave, working parents still face significant limitations in securing time off work to care for their children except in emergencies. Beyond ESA protected leaves, working parents may find some other protections through anti-discrimination and accommodation legislation in the Ontario Human Rights Code.

Anti-Discrimination and The Right to Accommodation

Working parents might face discrimination at work because of, among other things, their family status. If this happens, working parents should be aware of their rights under the OHRC which protects workers from discrimination. Additionally, employers have a duty to accommodate workers based on their family status. The duty to accommodate is directly tied to the OHRC’s protections from discrimination. Working parents cannot be discriminated against in employment, and employers must take steps to accommodate workers based on their family status.

In British Columbia (Public Service Employee relations Commission) v BCGSEU (Meiorin), the Supreme Court acknowledged that discrimination can be permitted because of a bona fide occupational requirement (BFOR). A BFOR must be imposed honestly and in good faith and must be reasonably necessary to ensure the work is performed safely and efficiently without unreasonably burdening the workers to whom it applies. However, both Meiorin and the OHRC indicate that a BFOR is unacceptable unless the group affected cannot be accommodated without undue hardship for the employer. Undue hardship itself covers things like the financial cost of accommodation and potential interference with the rights of other employees. In other words, an employer has an obligation to accommodate members of equity-seeking groups, including working parents, unless such accommodation would be excessively expensive or get in the way of other workers’ rights. If there is no undue hardship, employers ought to accommodate working parents.

While employers certainly have a duty to accommodate working parents, this duty is not unlimited. In Peternel v Custom Granite & Marbel Ltd., the issue was raised about how a working parent’s start time might be discriminatory due to childcare obligations. The court did not reject this claim, but merely held that there was insufficient evidence to show she had been discriminated against because of the starting time. While the employer had been lenient about the starting time because of childcare obligations and maternity leave, the Court held that this supportive leniency could not then be transformed into a contractual obligation that bound the employer. Consequently, the contractually outlined starting time was maintained and the discrimination claim rejected.

Termination

Working parents should be aware of how termination operates in Ontario. A worker can either be terminated without cause by being given reasonable notice or pay in lieu thereof or with cause because of worker misconduct. If an employer attempts to terminate your employment for cause because of your childcare obligations, they could very well be engaging in discriminatory conduct, protected under the OHRC. Because family status is a protected ground, and because employers have a duty to accommodate, termination for cause based on a working parent’s childcare responsibilities could be grounds for a human rights-based employment complaint. If you have any questions or need further information, please don’t hesitate to contact us.

Inducement and Misrepresentation

Inducement occurs when employers actively try to recruit workers away from pre-existing employment. Workers being induced should always keep a record of any communications to deal with the risk of misrepresentations. Induced workers should be aware of three types of misrepresentation: negligent, fraudulent, and innocent. Each type of misrepresentation can warrant compensation for workers induced to switch jobs. In Queen v Cognos, the Supreme Court held that employers must be diligent in making representations regarding the sort of employment being offered, especially when inducing workers. Failure to represent the employment opportunity appropriately can be negligent misrepresentation, even before any employment contract is signed. If this happens, and the worker detrimentally relies on those misrepresentations, legal remedies may be available. In Bruno Appliance and Furniture, Inc. v Hryniak, the Supreme court also established the test for fraudulent misrepresentation, requiring:

• A false representation by the defendant,
• Some knowledge of the falsehood of the representation by the defendant,
• The false representation caused the plaintiff to act; and,
• The plaintiff’s action resulted in a loss.

If an employer misrepresents the job opportunity to the worker and violates these elements of fraudulent misrepresentation, remedies would likewise be available. Even innocent misrepresentations can result in restitution, recission of contract, or other monetary awards, as outlined in Canaccord Genuity Corp. v Pilot. Workers should be aware of the threat of misrepresentations when employers attempt to induce them to change their work, as misrepresentations could result in the employment opportunity being very different than expected.

Concerns about Non-compete Clauses in Previous Employment Contracts

When being induced, workers should also be cognizant of any non-compete clauses in their previous employment contracts. If a previous employment contract with a non-compete clause covers the field where the worker is being induced to work, there may be a breach of contract. While the Employment Standards Act was amended in 2021 prohibiting non-compete clauses within employment contracts, this provision applies to employment contracts made on or after the amendment date. In other words, non-compete clauses that form part of an employment contract signed before the amendment date may still apply.

If an employment contract signed before the ESA amendment has a non-compete clause, the clause itself may still be unreasonable. In H. L. Staebler Company Limited v Allan, the Court held that non-compete clauses are presumptively unenforceable. Enforcing a non-compete clause requires both a proprietary interest entitled to protection, and reasonable temporal and spatial limits. However, even if a non-compete clause meets both requirements, it may still be unenforceable if a non-solicitation clause would instead adequately protect the employer’s interests. Furthermore, in Shafron v KRG Insurance Brokers, the Supreme Court indicated that ambiguity in the temporal and spatial limits of a non-compete clause can also result in the unenforceability. Nevertheless, in Payette v Guay Inc., the Supreme Court did uphold a non-compete clause, indicating that despite non-compete clauses being generally unenforceable, on occasion the court will give them effect. Consequently, workers being induced should always be wary of any non-compete clauses they may have in previous employment contracts, to avoid any potential legal issues arising from breach of contract.

Effects of Inducement on Reasonable Notice Period

Workers should also keep in mind the effects of inducement on any potential notice period owed if their employment is terminated. Workers are entitled to reasonable notice or pay in lieu thereof when they are terminated without cause. As it stands, Bardal v. The Globe & Mail Ltd. (Bardal) provides some idea of what sort of factors should be considered in determining a worker’s reasonable notice period. These factors include:

• Type of Employment,
• Age,
• Length of service, and
• Availability of similar employment.

Still, the factors outlined in Bardal are non-exhaustive, and other factors besides those listed above can and should be considered if they might reasonably influence the reasonable notice period. In Wallace v United Grain Growers Ltd., the Supreme Court held that certain inducements tend to increase a worker’s reasonable notice period. Specifically, inducements that promise career advancement, along with greater responsibility, security, and compensation with the new organization will typically be seen as increasing a worker’s reasonable notice period. Sometimes, as in Alcatel Canada Inc. v Egan, workers who are induced may be terminated shortly after their employment begins. When this happens, inducement can cause time spent at a previous company to be used in calculating the worker’s reasonable notice period. Consequently, an employer who induces a worker and subsequently terminates them without cause may be compelled to provide a greater notice period or pay in lieu thereof. If you have any questions or need further information, please don’t hesitate to contact us.

Electronic Monitoring Policies in the Workplace

Artificial intelligence programs are being used more and more to monitor worker performance both remotely and in person. As a worker, you should know what legal protections you have from the use of artificial intelligence in the workplace. In 2022, the Ontario government add new provisions on electronic monitoring to the Employment Standards Act. Consequently, an employer with 25 or more workers must provide their workers with a written policy on electronic monitoring in the workplace. Additionally, the written policy must include a description of both how and in what circumstances the employer monitors workers, while also detailing for what purpose the information obtained through the electronic monitoring will be used. In other words, the use of artificial intelligence to monitor workers in the workplace must be made clear to workers through the written policy. Whether artificial intelligence programs can be used to determine who should be fired depends on the specific details of the electronic monitoring policy.

The ESA limitations around electronic monitoring do little more than ensure that workers know they are being electronically monitored and for what reasons. While it may seem like employers have very little restrictions regarding what sort of policies they can make under the ESA’s electronic monitoring requirements, previous cases have established certain limitations for workplace policies. In Lumber & Sawmill Workers’ Union, Local 2537 v KVP Coal Ltd., (KVP), rules regarding acceptable workplace policies were established. In KVP, it was held that workplace policies must be:

• Reasonable,
• Clear and unequivocal,
• Brought to the worker’s attention before the company acts on the policy,
• Consistently enforced since it was introduced.

Additionally, workers must be informed that policy breaches can result in discharge if the rule is otherwise a foundation for discharge. In other words, workplace policies must be reasonable and clear, and employers must inform workers about these policies in addition to any consequences that may result from breaches before the policy can be used for discipline or termination. Unreasonable workplace policies are not acceptable, including unreasonable electronic monitoring policies. The issue then revolves around whether the established workplace policy is unreasonable.

Unreasonable Workplace Policies

Unreasonable workplace policies, especially concerning monitoring and termination, were addressed in Woodstock (City) and Woodstock Professional Firefighters’ Assn. (Video Surveillance), Re, (Woodstock). In Woodstock, it was determined that surveillance in the workplace must be balanced against the workers’ limited privacy rights. In other words, Woodstock indicates that an employer’s desire to monitor workers must be balanced against the workers’ interests to maintain their own privacy. If electronic monitoring is used to monitor workers, Woodstock holds that it must be done in proportion to the workers’ privacy interests and actual business concerns, including security risks. Surveillance with no connection to the business’ interests would be unreasonable, as would surveillance that infringes too much on workers’ privacy. Consequently, if artificial intelligence is used to monitor workers, it must be done in response to actual business concerns, and balanced against workers’ privacy interests otherwise it may not be reasonable.

In Canadian Union of Postal Workers v Foodora Inc. d.b.a. Foodora, (Foodora), artificial intelligence software used by Foodora to monitor worker performance was left unchallenged. Instead, taken as a given, such artificial intelligence was seen as a norm within the industry. In Foodora, the artificial intelligence program that electronically monitored the workers collected performance indicators and was used to discipline workers based on their recorded conduct. In some instances, Foodora workers were even terminated based on data collected by the artificial intelligence program. Consequently, so long as there is an established and reasonable workplace policy, the use of electronic monitoring to measure workers’ performance to discipline and even terminate them has currently been accepted in Ontario.

Can Artificial Intelligence be used to Terminate Workers?

Electronic monitoring can be used for a variety of things, like measuring worker performance and administering discipline, and can even be used to terminate workers. Worker dismissal is complex, and takes two main forms: Termination for cause, and Termination without cause. The ESA outlines basic entitlements for termination without cause, which can occur at any time in Ontario so long as workers are given reasonable notice or pay in lieu of notice. However, as outlined in R v Arthurs,if an employer terminates a worker for cause, they must demonstrate that the worker was:

• Guilty of serious misconduct,
• Habitually neglectful of their duty,
• Incompetent,
• Disobedient of the employer’s reasonable orders,
• Engaged in conduct incompatible with the workers’ duties; or,
• Engaged in conduct prejudicial to the employer’s business.

Within the context of reasonable workplace policies, as established in KVP and Woodstock, it is possible that an electronic monitoring policy complies with the ESA requirements while being used to monitor workers’ job performance and general conduct on the job. While electronic monitoring policies may be challenged on the grounds of workers’ legitimate privacy interests at work, it is also possible for the workplace policy to adhere to legitimate business interests and address actual concerns regarding security risks or worker performance. As in Foodora, electronic monitoring can be used to collect information regarding worker performance, administer discipline, and even terminate workers. In short, if an employer uses artificial intelligence to dismiss workers, they must comply with the ESA requirements on electronic monitoring policies, the standards for reasonability outlined in KVP and Woodstock, and the circumstances outlined in R v Arthurs surrounding termination for cause. If you have any questions or need further information, please don’t hesitate to contact us.

Many workers suffer from significant stressors in their day-to-day lives. For some, stress can become such a serious issue that it hampers their ability to work. In circumstances like these, it is crucial to be aware of your legal entitlements. Under Ontario’s Employment Standards Act, an employee who has worked for 2 consecutive weeks is entitled to leave without pay because of personal sickness, injury, or medical emergency. However, this entitlement is quite narrow, providing only 3 days’ leave. Furthermore, employers may require evidence confirming why the sick days were taken. Such evidence is limited to the duration of the expected absence, the date the worker was seen by a health care professional, and whether the worker was examined in person by the person issuing the note. Additionally, workers must give their employer notice that they intend to take any sick days. Unfortunately, for workers suffering from stress, 3 days’ leave over the entire year may be insufficient to cover all their health concerns. Outside of the ESA, workers may be entitled to extra sick leave if an increase above the mandatory amount is provided in their employment contract. If your employment contract does not provide more sick days, yet you need to take more time off work, you may still be protected under Ontario’s Human Rights code.

Anti-Discrimination protections

Workers in Ontario have a right to a discrimination-free workplace, including discrimination relating to disability. If you have a stress-related disability, your employer has a duty to accommodate your disability. However, there may be significant difficulty in getting your stress-related disability acknowledged in the first place. In Windsor (City) v. Windsor Professional Firefighters Association, chronic stress was raised as a disability that prevented a worker from attending work. Despite the employer being aware of the worker’s “severe and incapacitating stress”, the arbitrator found that there was improper reporting of the developing situation and held that the chronic stress experienced did not amount to a mental disorder. Instead of being seen as a mental disorder, and therefore a disability, chronic stress was treated merely as a standard reality of everyday life for most workers.

On the other hand, when workers can successfully demonstrate that they suffer from a mental condition, like post-traumatic stress disorder, disability status has been acknowledged. In Health Sciences North v. Ontario Nurses’ Association, the worker struggled to return to work after a significant leave due to her condition. The arbitrator found the employer had discriminated against her because of her mental disabilities, including her PTSD. Workers who suffer from mental health disorders such as PTSD can be assured that their condition entitles them to protection under the OHRC. Workers cannot be discriminated against because of their disability. Instead, employers have a duty to accommodate workers under such circumstances, and failure to accommodate may be a breach of your human rights.

Another aspect of anti-discrimination protections for workers is the duty to accommodate. Employers have a duty to accommodate workers on certain protected grounds outlined in the OHRC, including disability. However, in British Columbia (Public Service Employee relations Commission) v BCGSEU (Meiorin), the Supreme Court acknowledged that discrimination can be permitted because of a bona fide occupational requirement (BFOR). A BFOR must be imposed honestly and in good faith and must be reasonably necessary to ensure the work is performed safely and efficiently without unreasonably burdening the workers to whom it applies. Nevertheless, both Meiorin and the OHRC indicate that a BFOR is unacceptable unless the group affected cannot be accommodated without undue hardship for the employer. Since the test is for undue hardship, if the employer suffers some hardship, it is entirely acceptable. Undue hardship covers things like the financial cost of accommodation and potential interference with the rights of other employees. In other words, an employer has an obligation to accommodate members of equity-seeking groups, including workers suffering from stress-related disabilities, unless such accommodation would be excessively expensive or get in the way of other workers’ rights.

If you suffer from stress-related conditions like PTSD, it is important to consider accessing disability leave and any disability benefits you may be entitled to under the Workplace Safety and Insurance Act. Certain workers, primarily first-responders, are also entitled to insurance benefits arising from the WSIA if they develop PTSD arising out of and during their employment.

Termination

Employers have a duty to accommodate workers for their disabilities and cannot discriminate against a worker because of their disability outside of a bona fide occupation requirement. If your employer terminates you because of your stress-related disability, like PTSD, this may constitute a wrongful dismissal. In Ontario, termination takes two forms: for-cause dismissal which alleges worker misconduct leading to a breach of the employment agreement, or without-cause dismissal which requires reasonable notice of pay-in-lieu thereof. If your employer attempts to terminate your employment, it may stem from discrimination because of your stress-related disability. Termination on these grounds would violate your human rights and breach the OHRC. In those circumstances, you may well have been wrongfully dismissed, despite being entitled to a discrimination-free workplace. If you have any questions or concerns, please feel free to contact us.