2018 was a tumultuous year for employers
by Cristina Tomaino
2018 was a tumultuous year for employers with significant changes to workplace legislation both provincially and federally, the legalization of recreational marijuana in Canada, and a number of noteworthy decisions.
Throughout the year, CCP has kept you up-to-date on these developments through our Employers Edge blog and our Lawyers for Employers podcast. We are now happy to provide a recap of our top cases and legislative changes of the past year, along with links to our original blogs. Enjoy!
Bill 47 – Making Ontario Open for Business Act, 2018: It was good news for Ontario employers when the Making Ontario Open for Business Act, 2018 repealed many of the onerous amendments introduced by Bill 148, including the Personal Emergency Leave reforms, minimum wage increases, and the scheduling provisions set to have come into force on January 1, 2019.Be sure to check out episode 10 of our podcast, Bill 148 & Bill 47: Understanding the Changes to Labour and Employment Law in Ontario.
Bill 36 – Cannabis Statute Law Amendment Act, 2018: Bill 36 is the Ontario legislation that provides direction on who can buy, who can sell and where you can smoke/use cannabis. Employers should also review their obligations under the Smoke Free Ontario Act, 2017which establishes new posting requirements.
Police Record Checks Reform Act, 2015: In March 2016 CCP brought to your attention the Police Record Checks Reform Act, 2015. This Act was new legislation designed to standardize the process by which police record checks are requested, conducted and obtained in Ontario. The Act received Royal Assent in December 2015 but only came into force on November 1, 2018.
Bill C-86 – Budget Implementation Act, 2018, No. 2: Bill C-86 amends the Canada Labour Code and introduces a number of new entitlements for federal employees similar to those enacted provincially by Bill 148.
Bill C-65 – An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1: Bill C-65 creates specific obligations for federally regulated employers with respect to preventing and/or addressing workplace harassment and violence.
Bill C-81 – Accessible Canada Act: Bill C-81 is intended to reduce the barriers in federal organizations for people with disabilities. Federal employers will be required to, at minimum, create, publish and update an accessibility plan, provide feedback tools, and prepare and publish progress reports.
Top Labour and Employment Cases of 2018:
OPSEU v Ontario (Community Safety and Correctional Services),  OGSBA No 7: In January, an Arbitrator for the Ontario Grievance Settlement Board held that losses stemming from mental stress caused by workplace harassment or discrimination are compensable under the Workplace Safety and Insurance Act. Employers should undergo a review of any ongoing cases of this nature, especially those involving allegations of mental stress. Given the findings of this decision, employers may be able to have parts of those cases dismissed outright on a preliminary basis given such claims ought to have instead been brought under the Workplace Safety and Insurance Act.
R v Kazenelson,  ONCA 77: Also in January, the Ontario Court of Appeal upheld a 3.5 year jail sentence for a project manager convicted under the Occupational Health and Safety Act. This case should serve as a warning to employers are the potentially huge costs that may result from a failure to comply with health and safety requirements.
Aitchison v L & L Painting and Decorating Ltd, 2018HRTO 238: In February, the Human Rights Tribunal of Ontario demonstrated that employees do not have unfettered rights when it comes to using medical marijuana in the workplace by upholding the termination of an employee fired for smoking medical marijuana on a 37th floor swing stage. While the decision is certainly good news for employers, it is important to keep in mind that the safety-sensitive nature of the position and the clear health and safety risks in having workers using drugs played a critical role in the Tribunal’s decision. We would expect that in different circumstances employers would be required to accommodate an employee’s use medical marijuana where such accommodation does not lead to undue hardship.
Watson v The Governing Council of the Salvation Army of Canada, 2018 ONSC 1066: The Ontario Superior Court of Justice held that a Full and Final Release executed by an employee may not be sufficient to limit his or her entitlement to subsequently make a claim for sexual harassment. Employers are encouraged to review their standard release agreements to ensure that they include release from sexual misconduct, discrimination, or harassment.
Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3: Also in February, the Supreme Court of Canada affirmed that employers have a distinct obligation to consider the duty to accommodate separately from other legislative requirements that purport to address an employee’s ability to return to work. This case serves as an important reminder that employers must always take heed of their specific obligations under human rights legislation no matter what other processes or third parties may be involved in an employee’s return to the workplace.
Talos v Grand Erie District School Board, 2018 HRTO 680: In May, the Human Rights Tribunal of Ontario considered whether section 25 (2.1) of the Human Rights Code (read in conjunction with s.44 of the Employment Standards Act, 2000) breached the Charter. In short, whether employers could cut employees off of benefits when they turned 65 years old and not be concerned about a discrimination claim on the basis of age. The Tribunal determined that section 25(2.1) of the Code did breach the equality guarantee of the Charter by permitting lower compensation to older workers. As a result, employers should be aware that at this time section 25(2.1) of the Code has been determined to be unconstitutional and cannot be used as a defence to discrimination claims at this time.
Ruston v Keddco Mfg. (2011) Ltd., 2018 ONSC 2919: In May, the Ontario Superior Court of Justice awarded 19.5 months’ notice to an 11-year employee and further held that the company’s conduct was worthy of additional damages to the tune of $100,000 in punitive damages and $25,000 more in moral damages. The court found that the employer had made false allegations of fraud and financial misrepresentation as a tactic to intimidate the plaintiff. This case sends a very strong message to employers: just cause is not a tactic to better position the employer in wrongful dismissal litigation.
Suncor Energy Inc. and Unifor Local 707A: In 2012, Suncor implemented random drug and alcohol testing for workers in safety-sensitive positions at various sites in northern Alberta, which Unifor grieved as being an infringement on the workers’ privacy. Although the original arbitration panel ruled against Suncor, the Alberta Court of Appeal quashed that decision on the basis that the panel made an improper and arbitrary distinction between the workplace as a whole and the specific bargaining unit that grieved the random testing. The Court of Appeal reaffirmed that random drug testing was permissible where the employer could establish the workplace was dangerous and there was a general problem with drug or alcohol use at the workplace. Fast forward to June, when the Supreme Court of Canada denied Unifor leave to appeal, thereby confirming the Alberta Court of Appeal’s decision. Although the matter was referred back to arbitration, in December Unifor dropped its legal challenge to the random drug testing policy.
Haseeb v Imperial Oil, 2018 HRTO 957: In July, the Human Rights Tribunal of Ontario held that employers cannot distinguish between job applicants based on their ability to work in Canada on a “permanent basis” as it discriminates between applicants based on the protected ground of citizenship. Employers should be aware that their conduct during the recruitment and interview process can put them in breach of the Human Rights Code. It is important to take care that job postings, application forms, and interview questions all conform to Ontario’s human rights legislation.
Lewis v Whiteline Trucking Ltd, 2018 CanLII 72555 (CA LA): Also in July, an arbitrator under the Canada Labour Code held that frustration of contract does not amount to just cause termination. He noted that while the Canada Labour Code does not define “just cause”, it is well-accepted in common law that the conduct which generally meets the standard of just cause dismissal includes serious misconduct, habitual neglect of one’s duties, and willful disobedience. This decision is a reminder to all employers of the high threshold for just cause termination.