The end of the year is nigh…
And Ontario looks a little bit different…at least, from an employment law perspective.
More and more, Canadians are taking legal matters into their own hands and 2014 gave employees the power to do so in a faster way than ever before.
As mental health issues are becoming more common in the workforce, human rights laws are changing to reflect this reality. A key word this year: disability…who’s got one?
John Ghomeshi. Well, at the very least, he got the world talking about sexual assault and the importance of introducing and enforcing sexual harassment policies in the work place.
Money, money, money. Just when you think you can estimate damages fairly accurately, the Court of Appeal awards damages that you never saw coming…
Here is a list of 10 cases that changed the employment law landscape in 2014:
1. The Accessibility for Ontarians with Disabilities Act continues to impose new obligations on Ontario employers. As of January 1, 2014, most private sector employer organizations with 50 or more employees were required to establish, implement, maintain, document and post a multi-year accessibility plan. For more information, click here
2. Later in January, the Supreme Court of Canada made it much easier to bring a summary judgment motion to decide wrongful dismissal cases where just cause is not alleged when it released the Hryniak v. Mauldin decision. There have been several wrongful dismissal cases decided by summary judgment since this case was released. For more information on this case, click here
3. In April, the Ontario Workplace Safety & Insurance Appeals Tribunal concluded that sections of the Workplace Safety & Insurance Actwere found to be unconstitutional because this law treats workers with mental disabilities differently than workers with physical disabilities. I believe this will result in more claims from employees who are unable to work because of mental illness that is caused by work. For more information on this decision, click here
4. In May, the Federal Court of Appeal released a decision involving Fiona Johnstone, which sets out a four-part test that an employee must satisfy when seeking family status accommodation. This kind of case usually arises when an employee asks to have her hours of work modified to accommodate the employee’s childcare obligations. For more information, click here.
5. Later in May, the Ontario Court of Appeal upheld a large damage award against Walmart. In particular, The OCA ordered Walmart to pay $200,000 Wallace damages, $ 100, 000 in punitive damages, $100,000 tort damages, constructive dismissal damages, and legal fees. This decision surprised many employment lawyers given the Supreme Court of Canada’s decision in Honda Canada Inc. v. Keays. We believe this case will result in more employees claiming higher damages in wrongful dismissal cases. . For more information about the Walmart case, click here.
6. Also in June 2014 the Ontario Human Rights Commission released a new comprehensive policy entitled: “Policy on preventing discrimination based on mental health disabilities and addictions.” It does not have the force of law but the Ontario Human Rights Tribunal (tribunal) must consider it if one of the parties before the Tribunal asks it to do so. Disability complaints comprise over 50% of all employment related complaints and the number of mental disability claims is rising so we expect this will become an influential policy. For more information on this policy, click here.
7.As of July 1, 2014 almost all employees were required to provide mandatory health and safety training to almost all employees. For more information on this training, click here.
8. In late October, the C.B.C. fired Jian Ghomeshi. It generated a national conversation about sexual assault and sexual harassment. For a discussion on the legal issues raised by this case, click here. For a discussion on the legal issues raised by the appointment of an outside investigator, click here.
9. On October 29, 2014 three new unpaid leaves were added to the Employment Standards Act including the family caregiver leave which provides for up to 8 weeks unpaid leave each year to care for certain family members with a “serious medical condition”. We expect this new leave coupled with the Fiona Johnstone case mentioned above will result in scheduling and staffing challenges for employers, particularly small employers. For more information on these leaves, click here
10. In November 20, 2014 Bill 18 received Royal Assent. When it takes effect on February 20, 2015 it will, among other things, tie the minimum wage to the Consumer Price Index, expand the definition of “worker” under the Occupational Health & Safety Act, and remove the $ 10 000 cap on damages that can be awarded by an employment standards officer under the Employment Standards Act. We believe these changes will increase the costs associated with co-op students, interns and volunteers. We also believe this new law will result in more employees seeking termination pay and severance pay from the Ministry of Labour instead of seeking wrongful dismissal damages from the courts. For more information on Bill 18, click here.
For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
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I have written several blogs on whether wrongful dismissal damages include compensation for the variable compensation the employee would have earned during the applicable notice period. Most cases consider whether the language in a variable compensation plan which...