On September 14, 2023, the Federal government further extended deadlines for Canada Emergency Business Account (CEBA) loan repayments, issued during 2020 and 2021 to small businesses and not-for-profit organizations to help cover their operating costs during the pandemic, with partial loan forgiveness offered in exchange for timely repayment.
Repayment by the new deadline of January 18, 2024 (or March 28 if a refinancing application is submitted prior to January 18 at the financial institution that provided their CEBA loan), will result in loan forgiveness of $10,000 for a $40,000 loan and $20,000 for a $60,000 loan. As of January 19th, outstanding loans will convert to 3-year term loans, subject to interest of 5% per year, with the term loan repayment date extended an additional year to December 31, 2026.
The following are some interesting trends and updates in Ontario employment legislation and caselaw:
Temporary Help Agencies (THA’s) and Recruiters must be Licensed
- A temporary help agency (“THA”) or recruiter operating in Ontario is required to have a licence to operate. The original January 1, 2024 deadline was extended to July 1, 2024 for a THA or recruiter in Ontario to have a valid licence, or have submitted a licence application, in order to operate. Penalties may apply for non-compliance, and an organization may also risk penalty if it knowingly hires an unlicensed recruiter or THA.
- Note that licenses are not required for employees of organizations who recruit for other organizations. In that case, the organization requires a license, not its individual employees. Nor are licenses required for employees who recruit solely for their employers (e.g., recruiters in a bank).
Working for Workers Act, 2023 (“Bill 149”). If enacted, Bill 149 will amend various work-related statutes, specifically, the Employment Standards Act, 2000, Digital Platform Workers’ Rights Act, 2022, Fair Access to Regulated Professions and Compulsory Trades Act, 2006 and Workplace Safety and Insurance Act, 1997. Highlights to be prepared for, if enacted:
- Employers will be required to disclose salary range information on job postings.
- Employers in regulated professions will be prohibited from requiring “Canadian experience” (only) as a qualification for registration unless an exemption from the prohibition is granted in accordance with the regulations.
- If a prospective employer uses AI to screen, assess, or select applicants for a position, they must include a statement disclosing such use of AI in any job posting. This requirement may be subject to exemptions in the regulations.
- Employers will be required to keep all postings and applications for 3 years in order to prove the above if needed.
- Employers will not be able to use digital payment for tips on a platform which charges fees to the employee to access. Nor will establishment owners be allowed to participate in pooled tips unless they work alongside their staff in a similar capacity. Employers will also be prohibited from deducting employee wages for losses incurred by customer behaviour such as theft, dine and dash, not paying for gas etc.
- The vacation pay schedule must be set out in the employment contract for agreement by the employee if not paid out in advance of their vacation time via lump sum.
Potential Exposure Expanded in Wrongful Dismissal Cases
- Caselaw continues to be upheld that a termination clause that provides in any way for less than the statutory minimum notice will be struck down in its entirety. In that event, common law applies, and factors such as age, job level, length of service etc. are considered in determining the notice period a wrongfully dismissed employee is entitled to, with 24 months being the historic cap for C-suite or niche employees in exceptional circumstances. In recent cases, the ON Court of Appeals has upheld longer notice periods for reasons such as age, longer service and specialized skills, considering the decreased likelihood of re-employment for these mid-level employees near retirement age. See Mildwid v IBM, Lynch v Avaya.
Independent Contractor Agreements
- Beware of engaging with an independent contractor for a fixed term. In a recent case, the company terminated the contract early and was required to pay for the balance of the term because there was no termination clause. Because of their exclusive relationship, it was found to be more subject to employment law, and the contractor had no duty to mitigate as per typical contract law. Monterosso v Metro Freightliner.
- Takeaway: It is important to have an early termination clause in any fixed term agreement. Consider using an indefinite term contract with a termination clause.
COVID Decisions
- Vaccine policies are dwindling but still being upheld when deemed necessary to keep employees and public safe, such as in a large hospital providing essential services. In a 2023 case, 47 grievances were dismissed in arbitration because vaccination was a condition of employment, therefore known up front, and considered necessary to protect the hospital’s reputation and ability to provide care to the public.
- Human right exemptions to vaccine policies remain a necessary accommodation if for medical reasons or due to a sincerely held religious belief. It cannot be made up to support a personal preference. It is expected that employers faced with such an objection will have an exploratory discussion with the employee and try in good faith to come to mutually agreeable resolution prior to any decision to terminate employment.
More Human Rights – Accommodating Family Status
- Family status accommodation tests vary by jurisdiction. In relation to requests to alter work arrangements in relation to childcare, typically the employee must demonstrate that the accommodation is genuinely needed and they have been trying without success to find a suitable alternative, including various forms of childcare, family members etc.
- As with other requests for accommodation under human rights grounds, the employer is obliged to give accommodation that is needed, not just what is wanted by the employee. These discussions are not easy, but the employer can ask and explore what has been tried, and can decline a request that is simply a preference. Ideally, mutual agreement can be reached for what is appropriate accommodation, the intended duration and what happens if it doesn’t work, and those considerations are then documented in an agreement.
- It is recommended to have a policy on family status accommodations, particularly with the increase in employees working from home. For example, it may be appropriate to specify that remote workers are expected to have a quiet, distraction-free workspace where they are able to focus on their work during their working hours. Remote workers may be expected to arrange for childcare if needed during working hours, with unplanned, temporary circumstances (like a school closure or sick child) accommodated on an exception basis. Note that any changes to policy should be communicated with advance notice to allow impacted employees the opportunity to discuss with the employer if needed, and/or make any necessary arrangements.
Note: My blog contains a general overview of legal cases, updates and perspectives from a variety of sources, and is not intended to be relied upon as legal advice or opinion. Laws may change and should be interpreted in their context at the time. It is strongly encouraged to consult with an employment law professional for situation-specific advice.