The Ministry of Labour (MOL or the Ministry) has been busy implementing its Healthy and Safe Ontario Workplaces Strategy. Introduced by the previous Wynne government, the initiative has focused on small Ontario industrial businesses. A small business is one with fewer than 50 workers. 

Occupational Health and Safety Act Inspections

In late August, the Ministry published a report on the results of the inspection initiative. During the period April 1, 2018 to March 31, 2019, the Ministry of Labour visited 3,942 small business workplaces and issued 13,907 orders and requirements under the Occupational Health and Safety Act (OHSA). They also issued 184 stop-work orders. 

MOL inspectors will look into how employers are complying with OHSA including:

  • A health and safety policy and a program to implement the policy
  • Workplace violence and harassment policies and programs
  • Health and safety representative or joint health and safety committee
  • Complying with posting requirements (for example, OHSA, Health and Safety at Work poster)

Inspectors will also check up on what steps employers are taking to protect workers by taking suitable action to identify and control hazards.

Under OHSA, while employers must comply with specific regulations and requirements, they also have a duty to meet the often higher standards of taking all reasonable precautions to protect their workers. 

Employment Standards Act Violations

The MOL also has the power to enforce the Employment Standards Act (ESA) and can even conduct inspections covertly. From April 1, 2018 to March 31, 2019, 22,434 ESA claims were investigated, an increase of 7,500 over the previous fiscal year. The top five violations found during the 2018/2019 investigations were:

  • Payment of Wages
  • Vacation Pay/Vacation Time
  • Termination Pay
  • Public Holiday Pay
  • Overtime Pay

Take Aways

Compliance with the law can seem onerous, especially for small employers who often take more of a casual approach with their workers. However, not complying with the law can cost a small business big bucks in terms of fines or various other orders that require spending money. In some instances, violations of OHSA can even lead to jail time. The minimum standards set by OHSA and the ESA exist to ensure fair and safe working conditions. Employers, disregard them at your peril!

If you are a small business owner who has questions regarding the Healthy and Safe Ontario Workplaces Strategy or OSHA get in touch!

Another large fashion retailer has fallen out of style with consumers, closing its doors for good across Canada. Last Sunday, Bradley Sell, the Chief Financial Officer of the Canadian subsidiary Forever XXI ULC (“Forever 21 Canada”), announced that all 44 of its Canadian stores would be closing. Sell cited economic viability as the primary reason for the Canadian closures. Approximately 2,000 employees will lose their jobs as a result. The Ontario Superior Court has granted the company protection from its creditors under the Companies’ Creditors Arrangement Act (CCAA).

ESA Requirement Upon Mass-Termination

While filing for bankruptcy can offer an employer an opportunity to restructure its operations without the looming specter of insurmountable debt, bankruptcy is not a “get out of jail free card” for employers. In Ontario, under the Employment Standards Act (the “ESA”) employers must provide enhanced benefits to employees who have been terminated via a “mass termination.” Section 58(1) of the ESA defines a mass termination as a termination wherein more than 50 employees of an establishment are terminated within a four-week period. An establishment can include more than one retailer location and the four-week period is a window of time that begins the moment the establishment terminates 50 or more employees.

The employer must provide the Ministry of Labour (the “MOL”) with notice of the mass termination via a Form 1. The notice of termination period begins the moment the Director of Employment Standards of the MOL receives the Form 1, as such late filing of the Form 1 will have cost implications for the employer. The employer must post a copy of the Form 1 in a visible area of the workplace beginning on the first day of the notice period.

Notice entitlements will depend on the number of employees terminated. Section 74.11 4.3 of the ESA sets out the required notice period based on the number of employees terminated:

  • 8 weeks’ notice if 50 to 199 employees are to be terminated;
  • 12 weeks’ notice if 200 to 499 employees are to be terminated; and
  • 16 weeks’ notice if 500 or more employees are to be terminated.

The notice provided can be in the form of working notice or it can be pay in lieu of notice, where the employees stop working but get paid for the notice period. 

What about Severance?

Employees with more than 5 years of service with the employer will be entitled to severance pay, in addition to notice of termination, if they are terminated because of a “permanent discontinuance.” In mass termination situations, the severance entitlement is triggered even if an employer does not have a payroll of $2.5 million or more.

Final Thoughts

Even with the protections for employees provided by the ESA, it is undeniable that these mass-terminations have a considerable impact on workers in the retail industry.  Many stores are disappearing from the retail landscape – Gymboree and Payless Shoe Source also filed for bankruptcy this year – and it is very likely that we will continue to see this trend of closures as consumer trends shift away from “fast fashion” and more people use online platforms to source goods. 

If you have been involved in a mass termination or are just interested in learning more, we invite you to explore our So You’ve Been Fired e-book or get in touch!

Employers often have questions about what to do with vacation when an employee is on a leave. Do they still earn vacation time? Do they still get vacation pay even if they aren’t getting paid? Vacation is one of the trickiest employment standards, but we will shed some light into its dark corners in this post! 

The Right to Vacation

Under the Ontario Employment Standards Act (the ESA), employees are entitled to vacation both during periods of active and inactive employment. Employees are entitled to a minimum of two weeks of vacation per year if they have been employed for less than five years and three weeks per year after five years of employment. Vacation can be paid time off or additional pay. Employees who work part-time generally earn vacation pay on each paycheque, as opposed to paid time off. 

Inactive Employment

A period of “inactive employment” is a period of time during which the employee is still employed but may not actually be working. Employees on leaves of various types would be considered inactively employed. The ESA sets out a variety of different leaves under Part XIV. The leaves set out the parameters under which an employee can take a leave and have their job held until their return. Generally, the leaves require a period of active employment before an employee is eligible, are only for a set amount of time and are unpaid. The most commonly used ESA leaves are pregnancy leave and parental leave. The ESA also provides job protection for things like organ donor leave, family caregiver leave, bereavement leave and reservist leave – just to name a few.    

Earning Vacation While On Leave

While it may seem counterintuitive that an employee still earns vacation while they are on a leave – aren’t they already kind of on a vacation? – but that’s the way it is. However, while an employee who is inactively employed will always earn vacation time, they may not earn paid vacation time if their contract stipulates that paid vacation is earned through active service. Even where a contract contains this stipulation, an employee’s vacation entitlement (be it paid or unpaid or both) must never be less than the minimum ESA entitlement. Remember ESA vacation is earned through active AND inactive service. The Ontario Ministry of Labour provides some good examples of how this works in their Guide to the ESA, Your Guide to the Employment Standards Act. 

Paid or Unpaid – Vacation Time and Vacation Pay 

Whether an employee earns paid time off while on a leave will depend on the wording of the employment contract. Paid vacation is typically earned on paid time and not on unpaid time. 

The ESA requires that an employee be paid (or earn) a percentage of their wages as vacation – 4% for 2 weeks and 6% for 3 weeks. For employees on unpaid leaves, they will typically not earn paid vacation time (or vacation pay) because they have not earned wages upon which they would earn paid vacation. However, employees on unpaid leaves will still earn vacation time as per their minimum ESA entitlement – it will just be unpaid. For example, if Mark takes an unpaid parental leave of 6 months, and his annual vacation entitlement is 2 weeks, he will earn one week of paid vacation (for the 6 months he worked and earned wages) and 1 week of unpaid vacation (for the 6 months he was on an unpaid leave). 

Your head may be spinning by now – that’s just what the ESA vacation section does to people! If you have an employee on leave and are about to throw your computer out the window trying to figure out what they are entitled to, put that computer down and get in touch! We can help! 

 

This news story was just so wonky, and incorporated many of the crazy things we regularly get questions about, that we had to write about it! This situation took place in Winnipeg, Manitoba. On this blog, we usually focus on Ontario law because we are in Ontario, but other than Quebec, employment law is similar across Canada so the principles discussed here would apply across the common law provinces.

Slacking Inspectors 

Last week, the City of Winnipeg fired eight employees in its Property and Planning department. These employees were unionized, so their terminations are being challenged by their union – they may get their jobs back but they are off for now. 

The terminations followed a City of Winnipeg investigation, which was prompted after an anonymous citizens’ group paid a private investigator to video city inspectors conducting personal business during their work shifts. How crazy is that?

The citizens’ group is anonymous but allegedly consists of business owners and contractors. One can only imagine how frustrated these people must have been by the hold-ups of their building inspections to take the drastic step of hiring a private investigator. But the group found what they were looking for!

17 Property and Planning employees were followed and videoed taking extended lunches and coffee breaks, doing their grocery shopping, spending hours at the gym and running personal errands, all on work time. These employees were followed by private investigators for three months before the group handed over their footage to the City. 

Once the private investigator’s footage was handed over the City, the City conducted its own investigation. This investigation used more conventional workplace investigation methods, including reviewing timesheets and interviewing people. 

Is That Legal?

Videoing and recording are topics that come up a lot in the workplace. If you’re in a public space, like these employees who were being followed were, then filming without sound is generally legal. There are exceptions which we won’t get into here. Surreptitious filming of someone in a place where they do have an expectation of privacy, like a bathroom or their home, is generally not legal. 

Audio conversations can generally be legally recorded as long as one person who is participating in the conversation is aware that the conversation is being recorded. Secretly leaving an audio recorder in a room where you are not participating in the conversation is generally not legal. 

Takeaways

This story raises all sorts of interesting workplace and privacy issues. Our lives are increasingly being surveilled, but using a private investigator to spy on employees is still pretty out there. This is likely not something that the City would have done on its own, but once the footage was in its hands, it had a public responsibility to act. 

Supervisors have hard jobs, especially when it comes to employees working in the field – like these inspectors – and when it comes to remote workers, who could be working (or not working) anywhere. Employers need to be able to trust that their employees are actually working when they are supposed to be. 

Not working on work time constitutes time theft. The employee is accepting pay for time when they were not actually working. Technology provides employers with increasingly numerous ways to keep tabs on remote employees, but the balance always needs to be struck between employee privacy and the employer’s right to manage the workforce. 

If you have questions about workplace privacy or time theft, get in touch. 

Our clients ask a lot of questions about overtime. Despite many workplaces that are trying hard to keep work hours reasonable and limit them to 40 hours per week, in busy workplaces, overtime is very often inevitable – at least once in awhile. 

There is a lot to know about overtime, more than we can cover in this post, but here are some highlights and practical tips. 

The Overtime Threshold

In Ontario, the overtime pay threshold is 44 hours per week. This is set out in the Ontario Employment Standards Act.  In some provinces, the threshold is 40 hours, but we will focus on Ontario in this post. The 44-hour threshold means that any time an employee works beyond 44 hours in a week is overtime. Employees who work overtime receive extra pay (or time off — see below) for that time. The value of overtime is 1.5 times that of regular time. In other words, an employee who works 1 hour of overtime is entitled to 1.5 hours of their regular pay.  

Exemptions: Who Gets Overtime Pay?

Not every type of employee is entitled to overtime pay. Some categories of workers are exempt from aspects of the Employment Standards Act, especially as it relates to hours of work and overtime. These exemptions are set out in a separate regulation, titled O. Reg. 285/01: WHEN WORK DEEMED TO BE PERFORMED, EXEMPTIONS AND SPECIAL RULES. Exemptions from overtime pay are set out in section 2 and 8. Broadly, most regulated professionals are not entitled to overtime pay. This includes workers such as architects, lawyers, doctors, engineers, veterinarians, dentists, massage therapists, physiotherapists, pharmacists etc.  IT professionals, travelling salespeople, commercial fishermen, certain farming and landscaping jobs are also exempt. There are nuances to many of these exemptions and this list is not exhaustive, so we suggest you get legal advice before making any final determinations. 

The most commonly used exemption is for managers. Many employers will use “manager” in a job title and pay the employee a salary, thinking that this will make the employee exempt. This is not always the case, as to meet the exemption criteria, the manager must actually be spending most of their time managing and only perform non-supervisory or non-managerial tasks on an irregular or exceptional basis (section 8.b) of O.Reg 285/01). 

What About Employees On Salary?

Many employers believe that paying an employee a salary means that they do not have to be paid overtime. This is not the case. Salaried workers are entitled to overtime unless they fall under an exemption. 

In order to determine the overtime rate of a salaried worker, divide their weekly salary by 44. This will give you their regular hourly rate. The overtime rate will be 1.5 times the regular rate. 

Averaging: When Work Weeks Are Different 

Employers whose employees only occasionally work over 44 hours per week, or whose workload fluctuates, can take advantage of averaging agreements. This allows the employer to average the employees hours of work over a period of up to four weeks. If the average number of hours per week is less than 44, then the employer will not have to pay the employee overtime pay. 

Averaging requires the employee’s agreement. The employer cannot unilaterally decide that they will use averaging.  

Lieu Time Instead of Pay 

Lieu time is another way that employers commonly deal with overtime. Instead of paying out overtime, employees can take time off. The value of the time or pay is the same. One hour of overtime is 1.5 hours of time off or pay. 

Lieu time requires the agreement of both the employer and the employee. The time off must be taken within three months of the time when it was earned, or if the employee agrees, within 12 months. If lieu time was earned more than 12 months ago, or more than 3 months ago and the employee does not consent to an extension to 12 months, it must be paid out as overtime pay. 

Final Thoughts

Overtime with all its nuances and exemptions is tricky! If you’re unsure about how to classify workers in your workplace get in touch! 

The recent trailer for the upcoming film Bombshell depicts a hauntingly quiet elevator ride between three women who, we will soon discover, have something awful in common. The film, which will be released in December, is based on the real-life sexual harassment case against the founder and former CEO of Fox News, Roger Ailes. The women who are at the heart of this film, were employed at Fox News and brought forward the allegations against Ailes.  

Workplace Sexual Harassment in the Entertainment Industry

The topic of workplace sexual harassment is now at the center of most discussions around workplace safety and workplace culture, but it would be naive to presume that all workplaces are safer since the Me Too movement gained steam in 2017. 

Certain workers, by nature of their professions, are in a particularly difficult position with regard to workplace sexual harassment. While the Me Too movement has made a very deliberate attempt to expand its outreach beyond the entertainment and media industry, often making the point that harassment occurs in all industries, individuals who work in entertainment and media do face particular vulnerabilities.

What Makes the Entertainment Industry Different?

While the Ontario Human Rights Code (OHRC) and the Occupational Health and Safety Act (OHSA) protect a variety of workers, including individuals in media, entertainers will fall under certain exceptions. For instance, section 25.1(3) of OHSA, prohibits employers from instituting policies requiring employees to work with high heeled shoes.  However, this same provision exempts employers from the “entertainment and advertising industry.” 

Also, working in the entertainment space may require individuals to behave in ways that would normally be considered unusual in the workplace, such as wearing sexy clothing or performing scenes with simulated sexual activity or intimacy. These circumstances can lead to potentially exploitative situations, particularly for those new to the industry.

Addressing These Gaps

Another challenge for individuals is that many in the industry work outside unions and as such do not benefit from uniform workplace harassment policies. To address this need, the Association of Canadian Cinema, Television and Radio Artists (ACTRA) created universal guidelines to prevent and respond to harassment, bullying and violence in the workplace. Signatories of the Code of Conduct agree to take appropriate and timely steps to address allegations of harassment, discrimination and violence in the workplace, including taking legal action when necessary. Major players in the entertainment industry, including TIFF and the CBC, have become signatories.

The Directors Guild of Canada (DGC), a labour union that represents various people who work behind the camera, in collaboration with ACTRA, has created HAVEN, a bilingual reporting hotline available to those in the industry experiencing harassment in the workplace. The hotline operates 24 hours a day, 7 days a week and is completely confidential – a necessary feature in an industry that is so relationship driven.

Final Thoughts

While workers should be able to depend on strong legislative frameworks to protect their interests in the workplace, it is promising to see industry leaders come together to address the gaps that make certain workers more vulnerable. Canada is quickly becoming an important player in the world of content creation and, with the eyes of the world on us, it is critical that the entertainment industry work to create safe and supportive working environments for all workers.

If you’d like to talk more about how to deal with harassment in your organization get in touch! We are passionate about this issue and eager to help.  

Calling all federal sector employers! Significant amendments to the Canada Labour Code come into force on September 1, 2019. That’s this coming Sunday. 

Does this apply to you?

 Employers are often confused by the various workplace laws and requirements. It’s tricky to know which apply and not every law applies to every workplace. 

In Canada, the Constitution divides power between the federal and provincial governments. Here is a fun article if you want to delve more deeply into this topic. 

The Canada Labour Code is a federal law which sets out minimum employment standards for sectors that fall under federal power. These are generally sectors that go between the provinces, for example, air travel, railways and road transportation. It also applies to the telecommunications sector, banks and federal Crown corporations. 

For workplaces not involved in banking, telecommunications, air transport etc., minimum employment standards will be set by the provincial law. In Ontario, this is the Employment Standards Act. 

What’s New?

So if you’re a federal sector employer, here is what’s new come September 1, 2019: 

Breaks and Rest Periods

  • 30 minutes breaks – employees are entitled to an unpaid break of 30 minutes during every 5 hour work period. If the employee is required to remain available during the break, then the break will be paid. 
  • 8 hours between shifts – employees are entitled to a minimum of 8 hours off between shifts.
  • Unpaid medical or nursing breaks – employees are entitled to breaks for medical reasons or, if nursing, to nurse or express breast milk. 

Shift Scheduling and Overtime

  • 96 hours of notice of scheduled shift – employers must provide employees with their schedule a minimum of 96 hours prior to the start of the first shift. Employees can refuse work if less notice is provided, except in emergencies. 
  • 24 hours notice of shift change – employers must provide employees with a minimum of 24 hours of notice that a shift will change, except in emergencies. 
  • Lieu time instead of overtime – employees can elect to have time off at the rate of 1.5 hours per overtime hour instead of pay. 
  • Right to refuse overtime – employees may refuse to work overtime hours because of family responsibilities, with certain limitations.  

Entitlement to Flexible Work Arrangements

  • Right to Request Changes – employees with at least 6 months of consecutive service to an employer can request changes to their hours of work, work schedule, location of work or terms and conditions of work. The employer can refuse the request only on certain grounds. 

Time Off – Vacation and Holidays 

  • Vacation minimums – employees are entitled to 2 weeks of vacation (4% vacation pay) after one completed year of employment, 3 weeks of vacation (6% vacation pay) after 5 consecutive years of employment and 4 weeks of vacation (8% vacation pay) after 10 years of completed employment. 
  • General holiday pay for holidays that fall within the employee’s first 30 days of employment – holidays within the employees first 30 days were previously not paid. 

Leaves 

  • Personal Leave – 3 paid days and 2 unpaid days per year for employees who have completed 3 consecutive months of employment. The leave is for personal illness, injury or caring for family members. The employer can request documentation to support the reason for the leave. NOTE: The Personal Leave entitlement is already in effect.
  • Victims of Family Violence – 10 days of leave, the first 5 of which are paid if the employee has completed at least 3 consecutive months with the employer. This leave is for victims of family violence or for parents with children who are victims of family violence.
  • Traditional Aboriginal Practices – available to employees who identify as Aboriginal, this leave is 5 unpaid days per year to engage in traditional  Aboriginal practices. 
  • Court or Jury Duty – Employees are entitled to an unpaid leave of an unspecified length to attend court as a witness, juror or for jury duty. 
  • Bereavement – up to 5 days, the first 3 of which will be paid for the death of an immediate family member, if the employee has completed at least 3 consecutive months of service. 
  • Removal of the Minimum Service Requirement for the following existing leaves: maternity, parental, critical illness, or death or disappearance of a child.

The above list covers the highlights and for the most part, brings federal workplaces more in line with entitlements that already exist in provincially regulated workplaces. More changes are to come, with implementation dates not yet set in most cases, so stay tuned.  

If you have specific questions about the impact of one of these changes on your workplace, please get in touch!

Yes your business’ legal issues are full of many special and unique snowflakes to litigate. And then sometimes they are not and you just need a standard contract that is relevant and applicable to your workplace. When is which?

In the modern age of the democratization of knowledge, where online software can provide some pretty decent options to help resolve workplace issues and where legal subscription options can make legal documents and services more cost-effective, when should a business bother to hire a lawyer?

Not always, to be frank.

Inform Thyself

First, there are many great blogs out there (like ours!!), as well as good and helpful free legal information produced by the government, human rights tribunals, law societies, advocacy groups, education groups and so on. At SpringLaw, we find it quite useful when a client comes to us with that head start of basic information. We can all start the conversation a few steps ahead.

Clearing up the facts

Secondly, not every problem should be litigated. Not even every legal problem should be litigated. We love to get our elbows up and battle it out when required (who doesn’t love to end a stern letter with “Please govern yourself accordingly”?), but an aggressive litigious approach is rarely the most practical or effective approach.

In the workplace, so many problems are more Broken Telephone than Legal. Have all facts been gathered? Are the parties involved fully informed of the applicable policies or procedures? Is everyone on the same page about which employment contract provision applies? Have the parties just, well, um, TALKED to each other first?

Our clients are comprised of both employers (big and small) and employees (execs and frontline). It actually doesn’t matter how far up the corporate ladder a person is, there still is the reality that most employees/executives do not have the full picture of how decisions were made behind the scenes. And most employers/management do not fully understand how their actions or words are being interpreted and/or misconstrued.

So do you hire a lawyer to solve your Broken Telephone problem?  Yes, sometimes. But we would say always start with a careful look at whether common sense and due process have been followed. Has everyone’s side of the story been heard? Are assumptions being made about what documents or facts we’re each relying on?

Much of workplace disputes are credibility and human relationship based. Hearing each other out and clarifying facts is more than half the battle. We don’t naively think everyone will get along – they won’t and some people really shouldn’t work together -but we are always amazed at how much could have and should have been cleared up WAY before the parties dug into their polarized, distrusting positions.

Unlike a B2B or third party type of transaction, most workplace disputes are between people who see each other more than their family, so it is not a matter of lack of relationship or information. It’s about assumptions, misinformation, fact-finding and clearing the air.

If after all that you still are not seeing eye to eye then yes, of course, seek out a lawyer.  And while there is a place for automated, DIY, online legal software and programs, other times you need the human touch (e.g. a real life experienced lawyer).  The modern and real value a workplace lawyer can bring to the table is to identify the factual gaps and the assumptions being made that sometimes a business owner can’t see when she is in the trenches just trying to run a business.

Being Pro-Active about Messy Humanity 

The modern workplace is just so much more complex and sophisticated than a binary right-wrong conclusion. It’s messy and full of human relationships. While law continues to be that crucial line between order and chaos, how we all apply the law to the modern workplace is evolving and full of more effective nuances to solve workplace problems.

Having core documents, policies, procedures and compliance systems in place will free up businesses to focus on the application of those systems to run the business. Businesses can then turn to pro-active solutions based on an effective existing infrastructure, and pull in professionals upfront to help set up the systems and documents, with the aim of avoiding all that messy and very expensive human conflict down the road.

Get in touch if you have a workplace snowflake to figure out.   But even more useful, call us to help set up all that generic, standard, cost-effective stuff in your workplace so you can focus on running your business, instead of having to spend time putting out soul and money sucking legal fires.

Canada has just passed a new law to strengthen accessibility for people with a disability in federally regulated workplaces and organizations.

The Act to Ensure a Barrier Free Canada, also known as the Accessible Canada Act (the “Act”), came into force on July 11, 2019 and aims to create a “Canada without barriers” by the year 2040. A similar legislation – the Accessibility for Ontarian with Disabilities Act – exists in Ontario and aims to achieve this goal by the year 2025. 

The new Act will require organizations under federal jurisdiction to develop accessibility plans that account for the various barriers people with disabilities face in their built environments, when accessing services in the public, and in their employment. 

This Act will apply to the federally regulated private sector, the Government of Canada and Parliament. The Act’s primary mandate is to address accessibility issues in a proactive manner, by removing barriers before they create harm. This is significant given that a reactive response, through the human rights litigation process, has been the only impactful way to address these issues for over four decades. 

The Act will introduce the following changes:

(a) Accessibility Standards

The federal government has established the Canadian Accessibility Standards Development Organization (CASDO), whose mandate is to develop and revise accessibility standards for federally regulated industries. CASDO will provide these standards to the Minister of Public Services and Procurement and Accessibility (the “Minister”), who will create regulations that federal organizations must follow.

In addition to the standards set out by CASDO, federally regulated groupings will be subject to industry-specific regulations, as per Part 4 of the Act:  

  1. Regulated entities that carry on broadcasting undertakings; 
  2. Regulated entities that are Canadian carriers or telecommunications service providers; 
  3. Regulated entities in the transportation network; and
  4. Other regulated entities.

These industry-specific accessibility regulations will be detailed in each industry’s governing legislation acts, as follows:. 

Industry Grouping

Acts in which the Accessibility
Regulations Will be Found

Entity Responsible for Establishing
and Enforcing Industry-Specific
Accessibility  Regulations
(1) Regulated entities that carry on broadcasting undertakings The Broadcasting Act The Canadian Radio-television and Telecommunications (CRTC)
(2) Regulated entities that are Canadian carriers or telecommunications service providers The Telecommunications Act The Canadian Radio-television and Telecommunications (CRTC)
(3) Regulated entities in the transportation network The Canada Transportation Act The Canadian Transportation Agency
(4) Other regulated entities The Accessible Canada Act The Governor in Council

Organizations in these defined industries must refer to their industry’s governing legislation to find information regarding industry-specific regulations. The CRTC and the Canadian Transportation Agency will be charged with crafting the accessibility  regulations these federally regulated organizations will rely on to ensure they are providing a barrier free environment. The Governor in Council will make regulations for other regulated entities. 

These regulations will detail how organizations should assemble their accessibility plans, how to solicit feedback from the public regarding existing barriers in their organization, and how to produce meaningful progress reports. Once the regulations are drafted, regulated organizations will be required to produce their accessibility plan one year after the day fixed by their respective regulations. 

(b) Enforcement

The Act will also create the new role of the Accessibility Commissioner. The Accessibility Commissioner will have the power to conduct investigations into organizations that have received complaints under the Act. The CRTC and the Canadian Transport Agency will also enforce the Act for their respective industries.

The Act will create a formal complaint process for individuals who have suffered physical or psychological harm due to an organization’s failure to abide by the applicable regulations. The Commissioner has the authority to issue warnings and/or fines of up to $250,000 per violation for contravention of the regulations. 

Organizations may be inspected regardless of whether they received complaints. This is known as a “proactive inspection” and is one of the ways the Act is attempting to remove the burden from individuals with disabilities who have long been tasked with demanding accessibility on their own.

Final Thoughts

The Accessible Canada Act will create new standards for federally regulated industries in the hopes that more people are able to access and fully participate in the spaces they work and regularly utilize. Now that the legislation is in force, federally regulated employers should begin to educate themselves about the Act and start to consider the implications this Act may have on their built environment, their hiring practices, and how their employees’ interact with members of the public –  specific to-dos and deadlines are still coming. We will provide updates on the Accessible Canada Act as they become available.

If you have questions about accessibility in your workplace, get in touch! 

The Capital One Data Breach has been big news lately, and for good reason. It’s a big deal. This breach compromised the data of over 100 million Capital One customers. Instead of a shadowy overseas hacker or a creepy crawler from the dark web, the hacker was a former employee of the cloud hosting company through which Capital One stored their data (unconfirmed, but likely Amazon Web Services). She hacked through Capital One’s firewall to access information stored on the Amazon cloud. See women can be hackers too! This particular woman is now in US federal custody. 

Allegedly, Capital One configured a web app incorrectly, which created the vulnerability through which the hacker was able to access the server and the data. 

This situation is a nightmare for all involved – the customers, Capital One, and perhaps Amazon – and serves as a good opportunity for us to remind users about data security and workplace privacy. 

Data Governance in Ontario

Every modern workplace should have a data governance policy, especially now as it is becoming more common for employers to digitally store an employee’s entire work life that the employer may or may not be diligently protecting. The data governance policy may differ depending on your workplace and jurisdiction. The majority of Ontario workplaces are provincially regulated and employee information is not subject to any specific privacy or data governance law, with the exception of those that deal with private health information. Workplaces that deal with private health information – generally these are just bodies in the medical field – are governed by the Personal Health Information Protection Act.  Even where no specific law applies, employees are entitled to a reasonable expectation of privacy in the workplace. 

The federal privacy legislation, Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies to federally regulated private sector business (banks, telecommunication, interprovincial transportation etc.) It governs personal information generally, and not just personal health information.  

While PIPEDA only applies to employers in federal works, undertakings and businesses, adopting a PIPEDA-inspired standard in the workplace can benefit employers looking to strike a balance between their employee’s right to preserve their privacy and their right to collect and retain information critical to the functioning of their business. 

Data Governance Policies

Schedule 1 of PIPEDA includes a list of 10 basic principles that businesses should use in order to ensure their use and storage of private data is reasonable. These rules are also reflected in various provincial private sector privacy laws and are frequently cited in privacy caselaw and arbitral decisions in Ontario. This list should provide employers in Ontario with the tools required to properly manage their employees’ private information, which provides the employer with added protection in the event that their data finds its way into the hands of a hacker. 

  1. Organizations are accountable and responsible for the data they manage.
  2. Organizations should inform individuals of the personal information it collects from, why it collects it, and what it does with it.
  3. In most instances, an employee should be given an opportunity to consent to the collection, use or disclosure of their personal information.
  4. The information collected by an employer should be necessary for the purpose identified and should be collected using fair and lawful methods.
  5. An organization should only disclose personal information for the purpose it was originally collected and store information only for as long as originally specified unless the individual consents to other uses or there is a legal rationale for disclosing the information.
  6. An individual’s personal information should be accurate, complete, and up-to-date.
  7. Personal information should be protected using adequate safeguards.
  8. Information about an organization’s privacy policy should be accessible and available upon request.
  9. Individuals have the right to access their personal information and the right to have their information corrected.
  10. Organizations are required to give employees the means to challenge an organization’s compliance with these principles.

Individual Remedies

While Ontario lacks privacy legislation and thus cannot require employers to implement  PIPEDA compliant privacy policies in their workplaces, employers should be mindful that employees do have avenues of recourse if their personal information is accessed or disclosed without their consent. In the landmark privacy case in Ontario, Jones v. Tsige, the Court of Appeal recognized employment information as one of the categories of personal information that could be highly offensive to invade. Employees have successfully relied on this case when their employers have used their personal information inappropriately or required them to undergo invasive tests where highly personal information was collected. 

Take-Away for Employers

With the stakes being what they are, it may be pragmatic for employers to simply limit data collection to information that is absolutely necessary for the functioning of their business rather than going on fishing expeditions under the guise of improving safety and security. Following the principles expressed in PIPEDA’s Schedule 1 seems like a small concession when you consider the potential havoc a privacy breach could create within an organization. In the event of a breach, having less will certainly provide more peace of mind.