Bill 148 Fair Workplaces Changes:  Scheduling, Leaves and Vacation

Photo Credit - Kazuend

Photo Credit – Kazuend

This is the third post in my series about the proposed Bill 148 legislative changes. In this post I discuss changes related to scheduling, leaves and vacations.   

Under the proposed changes employees will have the right to increased workplace flexibility and increased leave entitlements. Let’s take a look at the breakdown of these expected changes.


After three months of continuous employment, an employee can request a schedule or location change without fear of reprisal. If the employer wants to deny the request, they are required to provide reasons for the denial. A discussion of the request with the employee is mandated in any case.

Vacation Entitlement

Under the current Employment Standards Act, 2000 employees are entitled to a minimum of two weeks vacation, regardless of seniority. Bill 148 would amend this vacation entitlement provision to increase entitlement to three weeks for employees with five or more years of service to the employer.

Leaves of Absence

The Bill proposes increased entitlements to various forms of leave. Unpaid family medical leave would be increased from up to eight weeks in a 26-week period, to 27 weeks in 52 week period.

A proposed new section of the Employment Standards Act, 2000 would establish an unpaid leave of up to 104 weeks in the event of the death of a child. Under the current version of the Employment Standards Act, 2000 the employee’s entitlement to leave ends, rather harshly, at the end of the week in which the child dies.

The current 52 week entitlement to leave for the crime related disappearance of a child would also increase to 104 weeks. Presently there is a 104 week entitlement where a child dies as a result of a crime.

Personal Emergency Leave

Under the current version of the Employment Standards Act, 2000, personal emergency leave is required to be provided only by employers with 50 or more employees. The changes proposed by Bill 148 would make this leave available to all employees, regardless of employer size. The leave entitlement would include the first two days of the present ten day entitlement be paid days.

Personal emergency leaves can only be taken for a prescribed list of reasons. These include death, illness, injury, or medical emergency related to the individual, an immediate family member, or a dependant family member. The Bill would expand the current list of reasons to include the individual or a family member experiencing sexual or domestic violence, or the threat of sexual or domestic violence.

While employers can ask for evidence to support an employee’s personal emergency leave, they will not be permitted to require a certificate from a qualified health practitioner.

Public Holidays

Under the proposed amendments, Family Day, as an official public holiday, will move from O. Reg 185/01 to be included under the definition of Public Holiday in the Employment Standards Act, 2000. It will continue to fall on the third Monday in February. The rules about public holiday pay are also proposed to change with respect to how the pay is calculated, and with respect to the substitution of a different day off for the public holiday.

In my next post I will cover more of the proposed changes, including those related to unionized or union vulnerable workplaces.

Bill 148 Fair Workplaces Changes: Wages

Photo Credit - Fabian Blank

Photo Credit – Fabian Blank

Last week I posted about Bill 148. In this post I will discuss some specifics of the proposed changes related to pay. The Bill proposes several changes that will affect how much employees get paid.

Minimum Wage

Perhaps the most wide sweeping change will be the proposed increases to Ontario’s minimum wage. General minimum wage is currently $11.40 per hour and there are different minimum wages for different classes of workers, such as students and servers. Bill 148 proposes increasing the general minimum wage to $14.00 per hour on January 1, 2018, and then to $15.00 on January 1, 2019, followed by annual increases at the rate of inflation.

Equal Pay for Equal Work

Pay rates will also change based on the equal pay for equal work provision of the Bill. These will affect pay for those in more precarious employment positions such as temporary, casual and seasonal employees if they are doing the same job as full-time employees. The same thing goes for employees from temporary help agencies performing the same job as permanent employees at the agencies’ client company.

Practically this means that employees will be able to request a review of their wages if they believe they are being paid differently than full-time or permanent employees. Employers will be required to respond to requests for pay review either with a pay adjustment, or an explanation for the difference. Pay differences will be acceptable if they are based on relevant factors such as seniority, or if pay is determined by another metric such as quantity of production. Reducing the rates of regular employees to bring everyone in line will not be a legal way to comply with this proposed section.

Overtime Pay

This change will apply where an employer has one employee with two different jobs, and where the rates of pay for the two jobs are different. The hours worked in both jobs will be counted towards total weekly hours with respect to the overtime threshold. So for example, let’s say Barb is a pizza delivery person, and also sometimes works in the kitchen. She gets paid a different rate for each job. If Barb works 30 hours in the kitchen and 20 hours delivering pizza she will be entitled to overtime pay for any hour above the threshold, based on the combined hours in both of her jobs. She will be entitled to pay at one and one-half times the regular rate for the work performed during the overtime hours. This change could mean more money going towards wages for small businesses who have employees wearing many hats.


The new scheduling provisions call for minimum pay for shifts under three hours, minimum pay for being on call, and the right to three hours of pay if a shift is cut short or canceled without 48 hours notice. In all of these situations employers will be required to pay the employee for a minimum of three hours, even if they were on call and not called in, were called in for less than three hours, were scheduled for a shift of less than three hours, or had their shift cut short.

Notice Pay for Temporary Help Agency Workers

Employers who hire temps for assignments of three months or more will be required to provide them with one week’s notice or pay in lieu if the assignment is terminated before the end of the estimated term. There is an allowance for mitigation, where notice will not be required if the employee if offered another assignment, lasting at least one week.

I will discuss Scheduling, Leaves & Vacations in my next post.

Introduction and Economic Viability of Bill 148

Photo Credit - Viktor Forgacs on Unsplash

Photo Credit – Viktor Forgacs on Unsplash

I posted in May about upcoming reforms to Ontario’s workplace laws and you’ve likely heard other rumblings in the employment and HR world about Bill 148, known as the Fair Workplaces, Better Jobs Act, 2017. Early in June the first reading of the Bill was carried, the second reading discharged and the Bill referred to the Standing Committee on Finance and Economic Affairs. The Committee is now tasked with examining the economic impact of the proposed changes, something that may be on many employers’ minds. The Committee will be holding public consultations across the province during the month of July. Those interested in participating in the process can find more details here.

What has many employers concerned is that the changes proposed by the Bill largely favour employees. Premier Wynne has said that the changes are intended to address the new realities of working in Ontario brought on by technology, increased automation and the rise in precarious contract, freelance and part-time work. Critics think that the workplace changes could decrease the attractiveness of Ontario to businesses looking to expand operations or set up shop. For example the Ontario government reports that should the Bill pass, more than a quarter of Ontario workers will receive a pay hike due to the increase to the minimum wage.

On June 7 Alberta passed new workplace legislation, similarly designed to make workplaces more employee friendly. It will be interesting to watch how these changes play out. But are economic growth and improved rights for employees mutually exclusive? Premier Wynne thinks not. I guess it depends what side of the fence you sit on.

Ontario lawmakers are on summer recess until September 8, with January 1, 2018 being the proposed effective date for most amendments it’s expected that the Bill will be finalized some time this fall.  

In the next series of posts I will address the specifics of the Bill and what changes will mean for Ontario workplaces.

Employee Engagement in the Modern Workplace

Photo Credit - Daria Shevtsova

Photo Credit – Daria Shevtsova

I regularly speak on the issues of employment and human rights law, but it turns out that lawyers really do end up with a warped view of the world. 

Yesterday I spoke on a panel of HR and people-management thought leaders: David D’Souza, Anna Petosa and Shaun Scott, moderated by Chris Taylor of Actionable. I was the only lawyer on the panel, which makes sense since lawyers are not typically people-management thought leaders.  In fact, I was surprised at how divergent some of our views were.  

The modern workplace requires innovation, agility and creativity when it comes to employee engagement, learning and development, how to accept and embrace the high turnover, gig economy, and how to stop generalizing generations.  I agree with this, and believe an organization will only grow and thrive when it can figure out how to engage all individuals, not just certain demographics or generations.  

My co-panelists rightly emphasised the benefit of individualized and customized learning and development, the value of more frequent, less formal feedback, and the role of peer mentoring and review.  These aspects of a forward-thinking workplace each help with attracting talent, retaining that talent and infusing the organization with knowledge and expertise.

So what do you do when an individual employment relationship goes south?  This is where the dour lawyer comes in.  All those informal meetings providing career development feedback are great.  Are they written down?  Are expectations mutual, or is the organization inadvertently trying to use these interactions as focus groups for long term workforce development?  If so, are these conversations and the soliciting of what will engage and satisfy an employee creating expectations to which the employee believes they are now entitled?  When ideas are raised, are they agreed to, or do both sides of the table understand this may be just a brainstorming session? Is bespoke learning and development modifying the contractual relationship by adding on new duties, augmenting a role, providing greater responsibility – but no increase in pay?

I’m fully aware that these questions sound cranky and old-school.  I’m also fully aware that the vast majority of time, the benefits of sophisticated and deeper employee engagement outweigh worries of a future and possibly remote legal battle.

But – there’s always a legal but – I so often see situations that have unnecessarily become nasty and expensive for the employer, largely because of broken telephone, misunderstood expectations and most people’s preference to avoid conflict and difficult conversations along the way.  

A large global organization can absorb the cost of a very difficult termination. For a small employer, it can be devastating financially, from a time resource perspective, and general employee morale.  

There is great value in much more frequent, informal feedback designed to develop careers, not to build a case against an employee.  When a termination becomes unavoidable, however, a bit of evidence is awfully handy.  

True, companies shouldn’t organize their whole system around the rogue employee, and rather, should build systems that are based on trust and on the assumption that employees want to thrive.

All I suggest is that in the midst of embracing the modern workforce, that leaders also document mutual expectations to ensure clarity, to make sure everyone is on the same page.  A friendly follow-up email, a check-in through the company IM platform, or at the least, a follow-up discussion that references the agreed upon expectations, goals and deliverables will let everyone have the best of both worlds – regular check-ins AND clarity.  

What is a natural corollary of bespoke and individual learning and development and flexible job roles, is that we all have bespoke and individual minds that view the world from our own individual lenses.  It remains important to have a method to sort out the disputes that do occasionally arise from all those individual perspectives, while focusing on the engagement and development of the workforce generally.

Ontario Employment Law Reform on Horizon

Photo Credit - Alex Robert

Photo Credit – Alex Robert

The Ontario government has been reviewing employment laws and labour standards in Ontario, the first such major review since the mid-1990s. A package of reforms is expected to be released next week.  “Changing Workplaces” has been a two-year review, headed by outside experts Michael Mitchell and John Murray.  The Ministry of Labour’s website contains the interim report (its only 312 pages, if you’re looking for a good read) and details on the review.

Although not yet available to the public, some Canadian news sources are starting to report on the likely contents, including the Toronto Star and CBC.

According to the media reports, the Changing Workplaces will address widespread reforms, including:

  • Increasing minimum wage, up to $15 an hour (up from the current $11.40)
  • Dealing with the increase in precarious and temporary worker jobs
  • Requiring the same pay rate for employees in part-time positions performing the same job
  • Protection for independent contractors doing the work of an employee
  • Increasing the minimum paid vacation days per year
  • Introducing paid sick leave
  • Expanding emergency leave to employees at companies with less than 50 workers
  • Eliminating some of the current exemptions to expand certain worker rights
  • Increasing private sector unionization support
  • Expanding successor rights for unions

Stay tuned for more updates as the reforms are released.


Getting Sued by an Ex-Employee


What is an employer to do when served with a Statement of Claim?  Here are the most common questions we get:

  • Is a response mandatory or can we ignore the claim?
  • How do we get rid of this ridiculous claim?
  • How much is this going to cost?

Is a Response Mandatory?

Yes, an employer must respond by serving and filing a Statement of Defence.  The failure to respond will mean the court may deem all of the facts in the Claim to be true, potentially leaving the employer liable for the damages claimed by the plaintiff without putting a defence on the table.   

A company representative can pick up the phone and try to settle the matter in exchange for the ex-employee dropping the claim, but that has about a 1% chance of success.  Typically, the plaintiff feels he or she has already made significant efforts to settle the matter. By the time you get that Statement of Claim, the Ship of Amicable Settlement has probably already sailed.

For incorporated employers, it’s time to lawyer up.  Under the Ontario Rules of Civil Procedure, a party to a proceeding in the superior court that is a corporation must be represented by a lawyer, except with leave of the court (Rule 15.01(2)).

How Do We Get Rid of this Ridiculous Claim?

Employment lawyers are busy for a reason – there are two sides to every story, and especially emotionally driven stories involving a person’s livelihood, ego and career identity.  The best way to get rid of a ridiculous claim is to vigorously defend.  There are no short cuts prior to filing a Statement of Defence.  

Once the pleadings close (ie the Claim, Defence and Reply(s) are filed), there are some options.  The rules next call for an exchange of Affidavits of Documents (ie the evidence upon which a party intends to rely), but we’re seeing some parties in the employment law context push to mediation quickly, prior to the exchange of documents or examinations.  This has various pros and cons and should be carefully considered before trying to skip or defer the document disclosure and/or examination steps.

Another option is to bring a motion for Summary Judgement, arguing that there is no genuine issue for trial.  If there are any material facts to resolve, the motion is unlikely to be granted, and most employers are better off focusing on a strong defence than getting sidetracked by expensive motions along the way.

How Much is this Going to Cost?

Once an employer is dragged into litigation, there are inevitable costs including legal fees, court filing fees and general diversion of internal company resources to gather, compile and share relevant evidence with counsel.  

There are a couple of things a client can do to help contain their own legal costs.  First, write down a detailed chronology cross-referenced to the main documents.  Lawyers read faster than they can listen to an individual’s story, and it will always be a useful tool for everyone to refer back to.

The evidence gathering stage is not only one of the most critical stages, but can be the most expensive, other than trial.  Between documents, email, texting, and enterprise chats, there is more often a challenge with too much evidence to sort through, rather than not enough. Organizing this evidence in a methodical, clearly indexed system before handing it over to the lawyers can save a company a ton of legal fees. Always have a detailed discussion upfront about how your lawyer wants the information, what software do they use, are they paperless, and what are the key issues around which the evidence should be gathered.  

A final tip to help control the costs is to ask for an estimate of the different stages upfront. If your lawyer says it’s impossible to predict, ask for ranges for each stage of litigation.  If they relentlessly respond with “It depends/each case is different/yours is a unicorn”, then be prepared for a unicorn of a bill at the end.

A trial is rarely the right outcome for anyone but the lawyers, but there are many stages along the way that provide for good opportunities to clarify facts and drill down to the core dispute between the parties, facilitating a settlement that wasn’t possible prior to that claim landing in your inbox.

Workplace Instant Messages: Information Overload

Photo Credit - Gilles Lambert

Photo Credit – Gilles Lambert

We all know that social media, electronic communications and the online world has changed how we interact socially. Who has the patience to leave a voice message for a friend about a restaurant meeting place, let alone listen to one? That’s what instant messaging (IM) is for. Short, efficient and no small talk.

Enterprise IM Platforms

But does this efficient communication work in the workplace? Enterprise IM platforms like Slack, Yammer, Skype for Business and GSuite’s Hangouts all attempt to provide a ring fence and level of security around workplace communications. The problem is, IMing lulls us all into informality and a casualness that can sometimes blur into overly personal banter.  

IM in the Virtual Workplace

The greater potential problem is the use of texting in virtual workplaces. The enterprise platforms are intended to not just make for efficient work-related communications, but also foster workplace culture, relationships and collegiality, a pressing need in virtual environments. For many staff, it is a very comfortable method to communicate, more closely mirroring personal modes of communication, and can become the virtual watercooler.  

While owners and managers want their remote employees to have relationships, to work together and bond as a team, if the main platform the employees are directed to is a Slack channel as watercooler, then there is a good chance those communications will contain plenty of non-work-related communications.

Expectations of Privacy

R v Cole and various cases since have told us that employees in Canada have an expectation of privacy in the workplace that can be diminished but not eliminated by workplace policies.  Meanwhile, Bills 132 and 168 have amended the Ontario Occupational Health and Safety Act to put proactive duties on employers to address harassment and violence in the workplace, conduct which now often starts with an online post.

How are employers to balance that expectation of privacy with legal duties to protect employees and address misconduct? Very carefully.  

We will increasingly see the newer generations of workers who do not remember life before the internet demand some form of privacy online. No employer would think they can automatically act on a conversation a supervisor overheard in a bar offsite, so why should comments online in a private space (e.g. a tightly controlled Facebook page with a modest number of friends) trigger immediate discipline?   

Power of Writing

The difference, of course, is that one is in writing and while there is a risk it could be taken out of context, there is little risk about whether the words were stated. It’s simply easier evidence for an employer to act on. If an anonymous printup of a nasty but after-hours online discussion on personal devices between 2 staff about a 3rd staff member is slid under HR’s door, it’s hard for HR to ignore this written evidence of staff misconduct.

Whether to act on it is another story, and it will go back to the Millhaven test on the extent to which the comment has a nexus to the workplace. At some point, however, I anticipate that the mere fact that comments occurred on a workplace issued device within an IM platform may stop being such a strong factor upon which the employer can rely to discipline.

Policies – with Employee Input?

Aside from the frequent suggestion to ensure that workplace policies address online conduct, it will be increasingly important to have open discussions with younger employees about what expectations of privacy online means to them. Younger employees are used to having their life exposed on the internet (often by their own parents on Facebook), but that doesn’t mean they don’t still want a choice about their own privacy, and to make decisions about what will be carved out as a personal versus professional IM platform.  

It remains the employer’s right to manage the workplace and protect its digital assets, but that managing and protecting will benefit from a more open dialogue with the new generation coming into the workplace about the role of IM and online conduct generally.

Carving out privacy online will continue to be an uphill battle, but is part of the ongoing evolution of a civilized society figuring out how to have privacy in such a connected world.

SpringLaw is here!


SpringLaw logo

I’m excited to announce the launch of SpringLaw!

We are a virtual law firm advising on workplace legal issues for employers and executives. Whether you are US in-house counsel with a Canadian operation, a Canadian company with employees and clients abroad, or entirely local, our experience with global employers and mobile executives enables a practical approach to forward-thinking employment law.

I’m looking forward to more alternative fee arrangements, flat-fees and staying relevant in the online economy.

To learn more:

Contract Enforceability

Must the Employee Sign Off Prior to the Start Date?

Photo Credit - Aaron Burden

Photo Credit – Aaron Burden

When an employee is terminated without cause and offered a package that is very modest, but otherwise compliant with the employment contract, a common first step for his or her lawyer will be to see if the contract can be set aside.  If the contract can be declared void, the employee can try to pursue the typically much greater common law damages.

There are several grounds upon which courts have set aside either the full contract or at the least, the termination provision, including:

  • the termination provision provides less than the minimum required in the Employment Standards Act (ESA), including if there is no reference to continuation of benefits at least through the ESA notice period
  • the contract references at-will language and/or is governed by a US jurisdiction and disentitles the employee to minimum standards
  • the contract was entered into after the first day of employment.

Two weeks ago, the Ontario Court of Appeal released Wood v Fred Deeley Imports Ltd (2017 ONCA 158), a decision that addresses a few of these enforceability issues.  This blog post will focus on the issue of signing the contract prior to the start date.


Prior to this case, it was commonly held that an employer MUST have the employee sign the employment contract prior to the first day of employment.  This is based on the contracts principle that consideration (a benefit) must flow between the parties in order to enter into a legally binding contract:  the employee provides services and the employer pays for them.  The terms of those services and compensation must be set out prior to the commencement of the contract.  

If a contract was introduced after the start date, the employer was required to provide fresh consideration, such as a signing bonus.  Mere continued employment is not sufficient consideration in Canada.

Contracts were set aside if the employer had the employee sign a contract after their start date, and the contract included an adverse term such as a termination provision that limited the employee’s default common law entitlements.  This was deemed to be changing the deal after the fact.


The Wood v Deeley case rejected this argument based on the following facts:

  • Prior to the employee’s start date, the parties exchanged phone calls and emails that negotiated the terms of employment and that landed on a written agreement of terms via that email exchange;
  • The employee did not claim that she was seeing her contract for the first time on her start date, but rather, that it was not signed until after the start date; and
  • The contract did not contain any additional material terms she hadn’t already agreed on through email or on a telephone call a week prior to her start date.

The court concluded:

“[13]… The signing the day after she started working was no doubt a matter of administrative convenience.  Deeley did not unilaterally impose a new term of her employment.  Fresh consideration was therefore not required.”

This conclusion is a big deal.  The Ontario Court of Appeal has declared that there will be no more setting side of a contract on the technical detail of signing after the start date if the facts don’t otherwise support the need for fresh consideration.  

Take Away for Employers

This is good news to employers who often have logistical headaches getting the formal contract signed prior to the start date.  For example, an employee may not have a scanner or the means to conveniently return the signed contract prior to the start date.  

Most employees have email, and a very deliberate and careful exchange of email setting out the contract, preferable attaching a copy of the final version of the contract, and then getting email confirmation will likely suffice, pending the employee signing off when they arrive on the first day.

The lawyer in me would still feel better about getting signatures and final deals done well before the start date for mid- and senior- level employees where the termination exposure is much greater for the employer, but this does provide some welcomed flexibility for onboarding processes for front line employees.

Getting Fired Sucks!

Exit Sign

Today is the day.  The decision to terminate an employee has been made and now you have to deliver the news.  Before you step into that meeting, give some consideration to the impact this will have on your soon to be former employee.  Once the correct legal process has taken place, help guide the individual as to immediate next steps.  Remember to be kind and respectful.

Give them an opportunity to ask questions and recognize that it may take a bit of time for them to formulate any meaningful thoughts.  They are likely in a state of shock and probably not able to focus.

Do they have medical or financial hardships that you know of?

If you are aware of any medical issues such as on-going prescriptions or physiotherapy sessions, opt to extend company benefits a bit longer than the required minimum to help “ease the pain” (pun intended).  Consider building in a lump sum payment specifically earmarked for these needs.  At the very least, provide the individual with solid information on affordable medical insurance packages that can be purchased personally such as brochures or a comprehensive list of website links. This is not only a decent and compassionate thing to do, but a strategically smart thing to do to head off potential liabilities around benefits during the notice period (see my past post on this issue).

Do they need help with future job prospects?

Don’t just suggest that you will give them a reference or recommendation – put it in writing.  Provide them with a generic reference letter along with their severance package.  Most likely their pride or embarrassment may prevent them from asking for it down the road.

Do they have a strong support system at home?

Your employee may be too distraught to drive home after receiving news of termination.  You might suggest that they call a friend or family member to pick them up.  You could offer to send them home in a taxi instead.  It will be very difficult for them to simply pack up their personal belongings from their desk, accumulated over the years.  Perhaps you could suggest they return on a specified date, possibly after hours, in the near future to do so.  Or you might assign a friendly and compassionate co-worker to assist them.

Let them say goodbye.

Friendships that form in the workplace are often some of the strongest bonds.  Give the individual the option to say goodbye to their close friends in a private setting, while keeping it brief.  A hug and some reassurance may be just the thing they need to compose themselves before walking out the door.

Firing someone is always an unpleasant task.  Keep it kind.  When done right, dignity and mutual respect will remain intact.  (And may save employers the costs and hostility of an inflamed and emotionally charged termination battle.)