THE EMPLOYERS' EDGE
2022 In Review: A Look Back at The Top Cases and Key Legislative Changes That Impacted Your Workplace
2022 was a tumultuous year for employers as they continued to deal with lingering COVID-19 issues. Throughout the year, CCPartners has been there every step of the way to support employers by keeping you up-to-date on 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 of the past year, along with links to our original blogs. From all of us at CCPartners we wish you a happy and healthy New Year as we enter a brighter 2023. Enjoy!
- Monday, April 11, 2022 Bill 88, the Working for Workers Act, 2022 received Royal Assent and came into force. The Act made several notable changes to the Employment Standards Act, 2000, including requiring employers to create a policy on the electronic monitoring of their employees.
- On December 17, 2021 the federal government passed Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code. Bill C-3 proposed several notable changes to the Canada Labour Code including entitling employees to up to ten days of paid sick days per calendar year which would take effect in 2022.
- On April 28, 2022 the federal government had its first reading of Bill C-19, Budget Implementation Act, 2022 which, proposed several changes to the ten days paid medical leave created by Bill C-3, including allocating three days of medical leave to employees who have completed thirty days of continuous employment and allowing the employer to require employees to provide a medical note to support their absence.
- Effective June 20, 2022, the federal government suspended vaccination requirements for domestic and outbound travel, federally regulated transportation sectors and federal government employees.
- On October 1, 2022 the minimum wage for most employees in Ontario increased from $15.00 to $15.50. The minimum wage will remain at $15.50 until September 30, 2023, when it will once again be adjusted.
- On November 7, 2022 the Government of Canada released Regulations Amending Certain Regulations Made Under the Canada Labour Code (Medical Leave with Pay) which are the final regulations that require all federally regulated private sector workplaces to provide ten days of paid sick leave. The regulations are a permanent change to the Canada Labour Code and came into force and effect on December 1, 2022.
- On November 11, 2022 a decision was released by the Ontario Superior Court of Justice that struck down Ontario’s Protecting a Sustainable Public Sector for Future Generations Act, 2019, commonly known as Bill 124.
Top Labour and Employment Cases of 2022
Bloomfield v Service Employees International Union: the Ontario Labour Relations Board (“OLRB”) considered a failure of duty of fair representation claim submitted by employees that felt their union did not act swiftly enough against the employer’s vaccination policy. The OLRB determined that the union was not obligated to file a grievance to meet their duty and was correct to wait to act until members were adversely affected by the policy by being placed on leave.
Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112: the Supreme Court of British Columbia upheld an “after acquired cause” termination after it was discovered that the former employee had over one-hundred recordings of conversations in the workplace.
Chartwell Housing Reit v Healthcare, Office and Professional Employees Union, Local 2220: in this decision an arbitrator found that part of a long-term care homes’ mandatory vaccination policy violated the collective agreement due to the discharge clause. Fortunately, the arbitrator acknowledged other mandatory vaccination policies with termination clauses were considered reasonable in their respective contexts, confirming that termination clauses themselves are not universally invalid.
- Johnson Controls Canada v Teamsters Local, Union 419: after an employee attended the workplace with COVID-19 symptoms an arbitrator found that an employee’s false attestation on a COVID screening form constitutes just cause for termination.
- Parekh et al v Schecter et al: this case provided guidance on the Working for Workers Act ban of non-competition clauses. This case confirms that the provisions only apply to employment agreements entered into after October 25, 2021, which is the date the provisions became effective. While they can be difficult to enforce, employers can still seek to enforce non-competition clauses entered into prior to that date.
- Render v ThyssenKrupp Elevator (Canada) Limited: the Ontario Court of Appeal overturned a nearly $74,000.00 cost award on the basis of litigation misconduct by the employer. The Employer was found to have facilitated and promoted harassment by hiring a Media Consultant who sent a media release to the press on the eve of trial containing allegations that were not proven in court.
- Miller v. Luminultra Technologies Ltd: Judge Morrison concludes that terminating someone’s employment during the COVID-19 pandemic will automatically serve to extend the amount of notice that employee is entitled to only if the pandemic has negatively affected the availability of alternative employment. If a specific job market has not been negatively impacted by the pandemic then the employee cannot successfully argue that a notice period should be extended.
- Taylor v. Hanley Hospitality Inc.: this case addressed whether employees could claim constructive dismissal at common law while on job-protected. It was decided that employees could not claim constructive dismissal, however, Taylor appealed. On appeal, the Court overturned the decision on other grounds but declined to decide on the constructive dismissal issue as the motion judge’s analysis was without facts.
- FCA Canada Inc. v Unifor, Locals 195, 444, 1285: At this arbitration hearing, the Union argued that recent scientific studies had shown that two-dose vaccines were no longer effective against transmitting COVID. The arbitrator agreed and declared an employer’s two-dose COVID vaccine requirement to be unreasonable. This case illustrates that recent and developing scientific evidence are a crucial factor in determining whether a policy will be considered reasonable by labour arbitrators.
- Rahman v. Cannon Design Architecture Inc.: the Court of Appeal for Ontario overturned the motion judge’s decision finding that a provision of the employment agreement which denied entitlements upon termination for just cause did not amount to an attempt to contract out of the ESA. The Court of Appeal for Ontario determined that the motion judged erred by concluding: (1) the termination provisions of the employment contracts governed the employee’s termination entitlements; and, (2) the Respondents were not the employee’s common employers.
- Gracias v Dr David Walt Dentistry: a disappointing decision for employers as a plaintiff was awarded three-months reasonable notice despite only working with the employer for five months and receiving $16,000 worth of CERB.
- Benke v Loblaw Companies Limited: Alberta Court of Queen’s Bench rejected a claim of constructive dismissal after an employee was placed on unpaid leave for refusing to wear a mask at work. The Court said that the plaintiff placed himself in the position in which he found himself by his choice, and that his employer’s actions were reasonable in the circumstances.
- Regional Municipality of York v Canadian Union of Public Employees, Local 905: a decision favourable to employers in which a three-dose vaccination policy in question was found to be reasonable and enforceable.
- Parmar v Tribe Management Inc.: the Supreme Court of British Columbia ruled that placing a worker on an unpaid leave of absence for failing to comply with a mandatory vaccination policy does not constitute constructive dismissal at common law.
- Weilgosh v. London District Catholic School Board: a decision from the Human Rights Tribunal of Ontario (“HRTO”) that finds that employees may have the ability to pursue a claim under the grievance arbitration process set out in the collective agreement or through the HRTO’s policy.
- Lake v. La Presse: the Court of Appeal determined that the motion judge erred in reducing the employee’s reasonable notice period by two months for failing to mitigate her damages. This decision served as a reminder to employers that it is a difficult to prove a failure to mitigate damages. Employers must be able to show that employees would have found comparable employment had they taken the proper steps.
- Wan v Intek Communications Inc: an Adjudicator found that the Employer did have just cause to terminate an employee after they failed to participate in the accommodation process by refusing to attend an independent medical examination. This decision is a welcome outcome for all employers and should be viewed as an example of how to properly engage in the accommodation process.
- Yates v. Langley Motor Sport Centre Ltd.: The Court of Appeal for British Columbia overturned the trial court decision and ruled that an employee’s compensation is not reduced by the amount of CERB benefits received during the notice period.
- Bowen v. JC Clark Ltd.:this decision outlined limitations to discretionary bonuses. The court ruled that an employer’s discretion in awarding discretionary bonuses is not unconstrained and must be exercised fairly and reasonably.
- National Organized Workers Union v. Sinai Health System: this decision affirmed that there is a very “narrow” window in which judges can interfere as any disagreements arising from a collective agreement should only be heard by an arbitrator. Here, the Ontario Court of Appeal declined to intervene by granting an injunction against an employer’s vaccination policy.
CCP will continue to blog on new decisions and legislation affecting workplaces in Canada in 2023. 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!