Doing Business in Ontario: New Employment Laws Are Overwhelming Small Businesses

Aug 12, 2014

New Mandatory Training Obligations for Small Employers

Mandatory Training under AODA has been in effect since January 1, 2012

Most small employers are not aware of the existence of AODA because most employees and customers are not disabled and the issue of providing access to or accommodating disabled customers does therefore not occur very often.

I suspect the Ontario government is trying to educate small employers about their obligations under AODA. However, the reality is, this kind of training is not a priority and likely will not become a priority until the Ontario government starts enforcing this legislation. Fines for non-compliance are significant.

Mandatory Training under OHSA has been in effect since July 1, 2014

OHSA training is a different story. Small employers are generally more aware of OHSA because the Ministry of Labour regularly target certain industries for workplace safety inspections and fines for a violation of this law is significant. Fines of $ 50 000 or more are common if a workplace accident is involved.

New Mandatory Employee Leaves of Absence

Employee absenteeism is the bane of most small business owner’s existence. There is often only one person in a position and therefore a person’s absence can disrupt operations. Because one employee typically performs a diverse range of duties at a small business it is often difficult to find a temporary replacement. Accordingly existing staff usually have to pick up the slack. A day here and there is not usually a problem but extended absences can create an overworked and stresses out workforce.

Accordingly, small business owners traditionally tended to refuse requests for time off work. The legal landscape is changing in this regard. It started with pregnancy leave. This was followed by mandatory parental leave, personal emergency leave and family emergency leave. Three new leaves take effect in October.

Mandatory Family Caregiver Leave takes Effect on October 29, 2014

An employee will have the right to take 8 weeks unpaid leave to provide care and support to certain family members who have a serious medical condition including a spouse, child, parent, sibling or grandparent. The term “serious medical condition” is not defined…

Critical Ill Child Care leave takes Effect on October 29, 2014

 An employee with 6 months service can take up to 37 weeks off work to provide care or support to a critically ill child if a qualified health practitioner certifies that the child is critically ill and requires the care or support of one or more parents.

This leave is in addition to other mandatory leaves such as the Family Emergency leave and the Personal Emergency leave.

Employer Takeaways

It is difficult for small business owners to keep up to date on new employment laws.

In our experience, it is relatively easy to comply with the mandatory training requirements under AODA and OHSA in terms of time and cost.

On the other hand, we think it will be very difficult for small employers to find temporary workers to replace staff who take family caregiver or critical child care leaves. If few people take this leave – like the dearth of men taking parental leave – this will not be a practical problem.

If, however, employees start regularly taking leaves of absence to care for parents or children then small employers will no doubt start thinking of ways to discourage employees from taking such a leave, or start hiring employees who are less likely to take the leave. This could result in employees filing no cost complaints against  small businesses under the Employment Standards Act or the Human Rights Code.

In sum, these new leaves will likely place an extra scheduling burden on employers. Taking preventive measures like establishing a relationship with a temporary placement agency will reduce the harmful impact that this new law can have on your business.

For more information on recent developments in Ontario’s employment laws, and their implications on employers   click here.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

There are many ways to attack the termination clause in an employment contract. 

I am now surprised if employee counsel does not claim that their client’s  termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.

This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted. 

The Facts

In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated: 

Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:

  1. a)   Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.


  1. b)   The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.

Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.


Another way to attack a termination clause: What is the changed substratum doctrine?

An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."


The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."



The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”


Lesson to be learned:

An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.


For 30 years, Doug MacLeod of   the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.



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