HR and Employment Law Updates – 2025

Below is a sampling of important legislative updates (primarily to the Ontario Employment Standards Act) and recent ON cases pertaining to terminations and termination clauses. 

Legislative updates

In 2024, three Ontario “Working for Workers” laws (Bills 149, 190 and 229) were enacted and will come into force at various dates in the coming year. These bills amended the Employment Standards Act (ESA), the Occupational Health and Safety Act (OHSA), and the Workplace Safety and Insurance Act, 1997 (“WSIA”), as well as other work-related statutes.  So it’s a good time for employers to review their practices and policies to ensure compliance with new legislation coming into place. 

June 19, 2025 – New Long-Term Job-Protected Leave (ESA)

Bill 229 amends the ESA to include two new long-term job-protected leaves. One of these – the new 27-week Long-Term Illness Leave – will come into effect June 19, 2025. This leave allows an employee who has been employed for 13 consecutive weeks to have up to 27 unpaid weeks of leave if they will not be working due to a serious medical condition. The employee must advise the employer in writing and provide a note from a doctor, RN, psychologist or other practitioner specified in regulation. That note must include the period of time that the employee will be off work, and the employee is only entitled to take leave for that period, unless extended under certain conditions.

July 1, 2025 – Required Information for New Employees (ESA)

As of July 1, 2025, employers with 25 or more employees will have to give new employees certain information before or when the employee commences their employment, preferably in their employment contract. This information includes the legal name of the employer and its operating or business name, complete contact information for at least one contact, and logistical information like where the employee will commence work, their expected hours of work, their starting compensation, and their pay period and pay day.

July 1, 2025 and January 1, 2026 – Constructors and Employers to Keep Clean Washrooms (OHSA)

As of July 1, 2025, constructors and employers must keep washrooms for workers in clean and sanitary condition, and keep records of washroom cleaning which are maintained and made available. As of January 1, 2026, the dates and times of the last two cleanings for each facility must be posted physically near the washroom or be available electronically (assuming workers get instructions on accessing the records).

January 1, 2026 – Changes to Job Postings, Including Salary Transparency (ON)

On January 1, 2026, employers with 25 or more employees will have to comply with new obligations relating to publicly advertised job postings and related application forms:

  • Pay transparency. Job postings must include information about the expected compensation for the position or the range of expected compensation (within $50,000) for the position, where the expected compensation (defined as “wages” under the ESA) is less than $200,000 annually.
  • AI disclosure. Job postings must disclose whether the employer uses artificial intelligence (AI) to screen, assess or select applications for the position.
  • Canadian experience. Job postings and application forms must not include any job requirements related to Canadian experience.
  • Vacancy. Job postings must include a statement disclosing whether the posting is for an existing vacancy or not. 
  • Follow up with interviewees. An employer who interviews an applicant for a publicly advertised job posting must, within 45 days of their last interview, inform the interviewee as to whether they have made a hiring decision for the posting.
  • Information retention. Employers will have to retain every publicly available job posting and related application form, plus records of what information they provided to candidates, for 3 years after the posting is removed or the information is provided. 

Note that a job posting is not “publicly advertised” for the purposes of these requirements if it is:

  • A general recruitment campaign or general help wanted sign, not advertising a specific position
  • An internal posting for existing employees only, or
  • A posting for a position for which work is to be performed outside Ontario

While these new recruitment rules are currently unique to Ontario, a variety of pay transparency rules for recruitment have recently been introduced in BC and eastern provinces.

Caselaw updates

Invalidity of “At Any Time” Language in Termination Clauses

In the 2024 case of Dufault v. The Corporation of the Township of Ignace, the Ontario court held that an employment agreement’s termination provisions contracting out of the ESA by reserving the employer’s right to terminate without notice “at any time” and at the employer’s “sole discretion” were unenforceable. The court’s reasoning was that such language might allow an employer to terminate employees while they are subject to statutory protections, such as a statutory leave or after making a protected complaint about working conditions.

This decision has many employers and counsel scratching their heads again, given how common such language is in many employment agreements. The Ontario Court of Appeal declined to comment on the matter, deciding an appeal of the case on other grounds. 

An Enforceable Termination Clause in Ontario. In the recent decision of Bertsch v. Datastealth Inc., the Ontario court upheld the enforceability of a termination clause in an employment agreement that limited the plaintiff’s entitlement to only the minimum standards under the ESA. The Court held that the clause, while wordy, was lawful and unambiguous, and dismissed the plaintiff’s claim for wrongful dismissal common law damages. The clause guaranteed all minimum statutory entitlements and excluded common law reasonable notice.

Employer Bad Faith in Termination

In Krmpotic v. Thunder Bay Electronics Limited, the Ontario Court of Appeal upheld a $50,000 aggravated damages award against the employer. The court found that the employer acted in bad faith by dismissing an employee just two hours after he returned to work after a lengthy medical leave, causing the employee mental distress. When assessing the award for aggravated damages, the trial judge concluded that the Company had breached the duty of good faith and fair dealing. Notably, this award was granted and upheld without supporting medical evidence, highlighting the courts’ willingness to penalize employers for bad faith conduct during terminations. ​

Takeaways

Employers will want to review their standard employments, policies, job postings and application forms to ensure that they comply with current and upcoming legislation.

The cited cases underscore the importance for employers to draft clear, ESA-compliant termination clauses, and to handle terminations with fairness and in good faith to avoid significant legal repercussions. 

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.

Talking about Racism and Inequality in the Workplace

A few weeks ago, a university friend posted a link to a video of Hal Johnson describing discrimination against him at TSN, leading him to create Body Break.  Mr. Johnson was candid about his experiences, but not bitter.  It’s been one of many interviews I’ve watched in the last few weeks of black Canadians sharing their own personal stories of discrimination in the workplace, and what they’ve tried to do to overcome it, while suffering in silence. It’s been very moving and humbling, to say the least. 

I commented on my friend’s post that I admired Hal’s resolve and positivity, and that he turned unfair treatment into a positive contribution in ways he may not have planned for or foreseen, including normalizing bi-racial couples. My friend’s point was that he shouldn’t have been disadvantaged at work in the first place because of his skin tone. I was seeking the bright side, as Hal seemed to be, but he’s of course right about that.   

This story made me reflect on the many work environments, especially in the ‘80s and ‘90s, with virtually no minorities or female representation in leadership roles (still the case in many organizations unfortunately), and pretty rampant harassment and discrimination, cloaked in jokes and practices which were acceptable then.  It was “just how it was” and few or no options for greener grass if you challenged or left it. 

There was very little to no challenging or complaining by anyone those days, at least less than now. Most people kept their stories and feelings to themselves or close friends.  It was the context of work at the time, which enabled a lot of bad behaviour that would be considered unacceptable now under many office policies and employment laws. 

Upon further reflection, I’m sure there were times in my career that I benefited from being a white female, and other times that was a disadvantage.  Overall though, I acknowledge the privilege of being a white female, now more than ever.  I worked hard and put myself through university and law school, but appreciate now that those jobs would probably not have been available to a BIPOC, looking back on those work environments at the time. 

I moved to Kentucky with my mother and stepfather as I was entering grade 3,and grew up in Lexington, a relatively affluent and educated city, until sophomore year at University of Kentucky, then moved back to Canada and transferred to University of Western Ontario to complete my undergraduate degree.  My family was middle class but there were no black people in my neighbourhood or school.  All the black people lived in another part of town.  It was evident.  No one spoke about it.  It was just how it was.

I was assigned a black roommate on campus first year at UK.  She was from Louisville.  We got along well, laughed a lot, but she hung out with her black friends, and I hung out with my white ones.  She joined a black sorority, and I joined a white one.  They were segregated, and had different recruitment (“rush”) times of year.  We never spoke about it.  It was just how it was.  I remember wanting to have a joint party of her sorority and mine, and my boyfriend’s fraternity and her boyfriend’s fraternity, which seemed mirrored to each other. We never spoke about it, and I moved to Canada.  Opportunity missed. 

I lived with this girl for 8 months, and have no idea if (i.e., how many times) she felt discriminated against at school or shopping or walking down the street.  To me, she had no cares in the world.  She was always laughing, joking, and carried herself with such confidence, way more than I felt about myself.  I admired her.  It never occurred to me that she may have been hiding some pain.  We got along great, but we didn’t ask each other a lot of questions.  It was mostly banter about the day to day, classes, boys. I didn’t know or have the confidence to ask her if she experienced any racial injustices, and she wasn’t forthcoming on the topic.  She did not appear to need an ally, but not knowing her better is another missed opportunity.  I suppose I kept my cards close to my chest too, but that’s another story…

When I came to Canada, especially Toronto, it was a whole new world, that seemed so much more inclusive and progressive. Towns, schools and workplaces were much more integrated. Everyone peacefully co-exists, and even hangs out together!  I love living here, the diversity, the vibrancy, the tolerance and sense of community and belonging.  This is how it should be!  Right? Well, not entirely.

I still think Canada is the best, but it is not without flaws. Some have known, and some are now learning, that it’s not perfectly equitable.  Relatively good, or better than it was, is not enough. There has been progress, but systems and practices and mindsets (many unconscious) are still in place that hinder historically oppressed or disadvantaged groups.  There is lots of room for improvement.

Fortunately, in this province and country we have a Human Rights Code supporting protected groups who have been disadvantaged, and a court system that favours the less advantaged (employee) in the workplace power imbalance.  There is also the court of public opinion, reputation and brand.  Companies are coming to realize that news travels fast via internet and social media, and how leadership and management treat people can come back as loyalty, new sales – or to bite them, in both a business and recruitment sense. 

At least in corporate settings, I’ve seen many shifts and steps towards education and more diverse and inclusive representation in many workplaces. There is less tolerance of harassment and discrimination, and more proactivity to prevent it.  We can’t change the past, but we can continue to strive to educate ourselves, do better and teach the others to do better than we did – and let others teach us. 

It’s a watershed moment with a more collective conscience and momentum now, an inspiring time.  It is also a good time to ask yourself if you want to be part of these positive changes, or sit on the sidelines. 

This River I Step In, Is Not The River I Stand In – Heraclitus proverb on Riverside Bridge, Toronto

The attention on black racism right now is much needed, and also bringing up a lot of pain for people who have been historically disadvantaged, including Indigenous, LGBTQ+ and people of colour.  We need to allow people space to feel it, express it, release it, then work together to make the changes that are needed. 

I have heard on more than one occasion since the public execution of George Floyd and recent Black Lives Matter movements, right here in Toronto, the that no one at “the office” is asking how they are doing, whether managers, HR or even colleagues.  This is causing them more pain. 

I also know there is a lot of fear of misstep, of doing or saying the wrong thing. 

Recently, I facilitated an employment law refresher with a white and Asian executive team.  Topics included interview pitfalls and micro-aggressions – e.g., well-meaning comments or jokes, even compliments, that inadvertently offend individuals or groups, typically by reinforcing negative stereotypes.  As usual, managers and leaders are afraid to say anything to anyone after one of these sessions, which I don’t mind.  Awareness has been raised, and hopefully more caution and clearer communications will result.

What I’m hearing from black friends and colleagues is don’t be silent; reach out, be available, try, and assume you will mess up.  Be open to learning a different perspective than what you thought you knew.

What this translates to for leaders and colleagues is have the conversations, listen, be humble.  Get comfortable with being uncomfortable.  Learn from someone else’s experience.  Leaders can also offer EAP benefits for those who need further counseling or confidential advice.

Supporting/encouraging a multi-racial diversity & inclusion (D&I) committee can also be a great step in some environments, where members can feel safe to share experiences, educate others in the organization, and share concerns as well as proposed ideas and solutions with management for creating greater equity in the organization.  Manage committee expectations that not all requests may be adopted immediately, but there is receptivity to new ideas, processes and structures, and a willingness to dialogue.  It is important as well to ask for volunteers, but not appoint staff to serve on this committee.  You want to avoid burdening marginalized staff with additional unwanted unpaid service.  Best to encourage volunteers who are passionate about the message, who want to make this contribution to the organization and their colleagues.  Alternatively, you can hire a paid consultant with expertise and lived experience in a disadvantaged group to engage with your staff and management for custom training or other program. 

There is no better time than now to be a Servant-Leader, or take on some of those qualities.*  Be a trusted person to come to, to confide in.  Find out what your staff need from you in order for them to be successful at the plan you designed or agreed to, remove obstacles, coach and mentor, and get out of their way – as long as they are aligned with your strategy (unless you need a new strategy)!  This is good for business performance and morale.

Hopefully you got your team’s input on your strategy, and everyone is bought into the overall goal.  Giving staff some leeway how they get there, combined with clear expectations for performance and results, can be the most effective way to innovate and pivot as circumstances or information changes.  If there is one thing we can count on going forward, it’s change and uncertainty!

Allow your teams to innovate how they work, to find efficiencies, to provide upward feedback, to develop new products or services that meet the needs of your clients and customers they are face to face (mask to mask) with.  If you are pivoting more to online, and customers are telling your account or client service reps that your user interface is cumbersome to use, or has only white people in the pictures, you’re probably losing business from that.  If your staff suggest a new or improved health & safety protective measure, that’s valuable feedback too.  Taking the advice from your front lines and acting on it is a great way to show you care about your staff and customers.

It’s important now more than ever to listen more than talk, and invite others to take the floor too.  Give space to learn, grow, evolve.

Take a good look as well, if you don’t have a very diverse team, why is that?  You may want to take a closer look at your recruitment and retention practices.  It makes a difference who is representing you on campus and on interview panels, and screening your applications. 

This may also be a good time to conduct an anonymous staff engagement or feedback survey, which can give you valuable insights about how staff perceive things like their jobs, workplaces, management, colleagues, culture, diversity, training and organizational effectiveness.  I can help manage this, present results, and facilitate action planning. 

Please contact me if you would like to discuss any of the above, or any HR solutions or advice I may be able to offer.

Good luck, keep safe, and keep the lines of communication open. 

Hal Johnson story (June 16, 2020): https://www.cbc.ca/news/entertainment/hal-johnson-racism-body-break-1.5614395

*Servant Leadership: https://www.greenleaf.org/what-is-servant-leadership/

Practical Steps for Small Business Leaders during COVID-19 (updated March 17, 2020)

Some of my clients and I’m sure other businesses, especially small ones, are feeling quite overwhelmed or confused about what to do and how to weather this COVID-19 storm.  So this is an attempt to assimilate the massive influx of information, and to package together some useful recommendations and credible resources.  

The last few days of shut-downs and announcements have been alarming, a relief to some and an over-reaction to others, especially while most of us are asymptomatic.  The virus has a 14-day incubation period (hence the quarantine and self-isolation periods) and public health officials are telling us we all play a role in delaying community spread, as long as possible.  In other words, to flatten the curve (i.e., let’s try to avoid what happened in Italy: the complete overburdening of the medical system there due to the rapid spread and spike in cases needing treatment…).  It’s a tricky balance to prepare, not alarm people, so everyone can take necessary steps.

Staying home and limiting interpersonal contact for an undetermined period is challenging for all, including small businesses with limited resources.  The government is promising financial help, but the facts and timing are not yet clear. Meantime, many business owners are looking at ranges of options from credit/cashflow financing to pay/hours cuts to potential layoffs, trying anything they can to keep their ships afloat. This also provides an opportunity to creatively improvise and innovate how you support and interact with your staff and customers..

Engage your team in brainstorming and problem-solving these questions:

  • How can you adapt your service offerings to accommodate this situation and client needs?
  • What internal and client meetings and tasks can be done with more physical separation, online, on the phone or by videoconference, vs in-person or cancelled? 
  • What technology and processes do you have or need to put in place to support this?  
  • Where can you maintain productivity, cut some slack, keep everyone connected and even make this very difficult and challenging situation fun and stress-relieving for people? 
  • Who from your team can you enlist – or wants to help – with these items? 

Plans, policies, practices:

  • If you don’t have a COVID-19 policy or communications prepared, including workplace etiquette and hygiene, self-isolation and quarantine policies and other expectations, you should have one, consistent with and customized to your existing policies and practices.
  • If you don’t have a work-from-home policy, you now probably need one, at least on an interim basis.
  • If you don’t have paid sick days, you may want to consider implementing them, if you can afford it.  Alternatively, the Canadian government has announced that it has eliminated the waiting period for EI to relieve some of this burden.  It also has an application-based Work Sharing program, which may allow some employers to avoid layoffs resulting from COVID-19.
  • Ontario public health officials are now indicating that employers should not be requesting doctor’s notes for COVID-19 related time off work, because it may place an undue burden on medical professionals (i.e., they’re busy dealing with the influx of cases).  If your employee offers to provide a doctor’s note to substantiate medical time off for COVID-19 or anything else, ask them to scan and email it from home (if they have that capability), not bring it in while they’re sick.
  • If you don’t have a pandemic or business continuity plan, make a record of all the things you may need to deal with – including staff, clients, suppliers, technology etc. – that you’re now or maybe soon figuring out on the fly!  (And once all this is over, go back and put a proactive business continuity plan and supports in place for the next time.) 

Please contact me if you need help creating or updating your policies or staff communications. Please also share your ideas, resources and experiences – what’s working and what’s needed.

Remember, this too shall pass…  Your staff, clients, partners and others will appreciate your leadership in the interests of their and everyone’s welfare, which should pay off in the long run.  Stay safe and well!

Links to Public Health, Government and other Resources:

Public Health ON:  http://www.publichealthontario.ca/

Toronto Public Health:  http://www.toronto.ca/community-people/health-wellness-care/diseases-medications-vaccines/coronavirus/

Public Health Canada – COVID-19 (includes printable resources): http://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html

WHO – Getting Workplace Ready:  http://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf

FAQ’s for Employers from Sherrard Kuzz LLP (Employment Lawyers): http://www.sherrardkuzz.com/wp-content/uploads/2020/03/Briefing-Note-COVID-19-Frequently-Asked-Questions-for-Employers-Updated-to-March-12-2020-Sherrard-Kuzz-LLP-Employment-and-Labour-Lawyers.pdf

Employer Update re COVID-19 from Hicks Morley (Employment Lawyers): http://hicksmorley.com/2020/03/12/update-on-coronavirus-covid-19-ontario-announces-pandemic-enhanced-measures-to-safeguard-public/

Government of Canada actions for COVID-19 (general): http://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/canadas-reponse/government-canada-takes-action-covid-19.html

Government of Canada actions for COVID-19 (resources for business): http://www.tradecommissioner.gc.ca/campaign-campagne/ressources-entreprises-COVID-19-business-resources.aspx?lang=en

Work Sharing Program (financial assistance for impacted businesses – Canada): http://www.canada.ca/en/employment-social-development/services/work-sharing.html

Insulating for isolation: a mental health checklist for getting through quarantine (Conference Board of Canada): http://www.conferenceboard.ca/insights/blogs/insulating-for-isolation-a-mental-health-checklist-for-getting-through-quarantine

Article explaining Flattening the Curve (Washington Post): http://www.washingtonpost.com/graphics/2020/world/corona-simulator/