Ontario Election 2018: Do employees get paid time off to vote?

With the Ontario Provincial Elections around the corner, some employees may be entitled to paid time off to vote pursuant to the Ontario Elections Act.

The Elections Act states:

Employees to have three consecutive hours for voting

[6](3) Every employee who is qualified to vote shall, while the polls are open on polling day at an election, have three consecutive hours for the purpose of voting and, if the hours of his or her employment do not allow for three consecutive hours, the employee may request that his or her employer allow such additional time for voting as may be necessary to provide those three consecutive hours and the employer shall grant the request.

 Deduction from pay prohibited

(4) No employer shall make any deduction from the pay of any employee or impose upon or exact from the employee any penalty by reason of his or her absence from work during the consecutive hours that the employer is required to allow under subsection (3).

 Time off best suiting convenience of employer

(5) Any time off for voting as provided in subsection (3) shall be granted at the time of day that best suits the convenience of the employer.

The 2018 Provincial Election is scheduled for July 7, 2018, and polls are open between 9:00am and 9:00pm. Accordingly, (1) if an employee is working on voting day, (2) does not have three consecutive hours to vote while polls are open, and (3) requests time off to vote, then their employer must provide them with paid time off to vote.

An employer does not have to give paid time off, or time off at all, if their employee is off work for a consecutive 3 hour period during poll open times. That means no paid time off is required for 9:00am to 5:00pm employees because there is more than 3 consecutive hours after work ends for the employee to vote.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Equal Pay in the Ontario Workplace

Over the past 30 years there has been a gradual progression to establish equal pay in the Ontario Workplace. For employers and human resource managers it’s important to recognize what your obligations are concerning equal pay and that these obligations are increasing.

The Pay Equity Act

For its time, the Pay Equity Act was revolutionary. Enacted in 1987, it requires equal pay between the sexes, not within one job classification, but for work of all job types that are of equal value. The classic example is the receptionist (which is female dominant) and the warehouse worker (which is male dominant). Both jobs are of equal value but the male dominant role is typically paid more.

The Pay Equity Act requires employers to assess the value of each job class and assign it a value based on the following factors:

  1. What qualifications are required?
  2. How much responsibility does the job class require?
  3. What level of effort is required (physical and mental)?
  4. What are the working conditions like (physical danger, stress-level, customer facing)?

If upon completing this analysis, two jobs are of equal value to the company then those jobs should be equally paid.

Equal Pay Under the Employment Standards Act

While the Pay Equity Act legislates equal pay for different work but of equal value, the Employment Standards Act (“ESA”) mandates that employers pay equally for work that is substantially the same. If two employees engage in work that requires the same skill, effort, responsibility, under the same working conditions and in the same establishment, those employees should be equally paid.

The equal pay provisions of the ESA extend beyond gender discrimination to employment status. Since April 1, 2018, employers must not only pay males and females equally, but part time, temporary and seasonal workers must be paid the same as full time workers so long as they are performing substantially the same job.

There are exceptions, however. differences in pay are permitted so long as they are the result of:

  1. a seniority system – a system that pays employee based on length of service;
  2. a merit system – a system that pays employees based on merit: their skills, education, competence, etcetera;
  3. a system that measures earnings by quantity or quality of production – a piecemeal system or similar; or
  4. any other factor other than sex or employment status.

I wrote about the new Equal Pay provisions in the ESA as the changes were taking effect at the beginning of April. Read more details about this section in my post Equal Pay for Part Time Work begins April 1, 2018

Employers should be careful to ensure that any system they are using to determine employee pay is being implemented fairly and communicated to employees in advance. Any measurements of quantity or quality should to the greatest extent possible be objective and recorded.

Further, the ESA considers hourly/salary pay, along with overtime and commission. It does not however, specifically discuss whether it includes benefits, stock options or bonuses. Nevertheless, it may be prudent to consider how these extras are distributed to employees and ensure they are done so fairly.

Bill 203, the Pay Transparency Act, 2018.

On April 26, 2018, the Ontario legislature passed the Pay Transparency Act, 2018. This Act continues the Ontario governments trend towards pay equalization by establishing requirements for employers on disclosing compensation information of employees and prospective employees. Ontario is the first province in Canada to have legislation of this kind.

The major pillars of this legislation are as follows:

  1. Employers will be prohibited from asking for or seeking out information on what a prospective employee was or is being paid;
  2. Employers will be required to include expected compensation or range of compensation in any publicly advertised job posting; and
  3. Certain employers (likely those with a larger payroll) will be required to prepare and post publicly “pay transparency reports.” These reports are to include anonymized wage data with respect to gender and other prescribed characteristics, specifically information about the employer, the employer’s workforce composition, and differences in compensation in the employer’s workforce.

These transparency measures come into force and effect on January 1, 2019. The same day as the $15 minimum wage. Employers with more than 250 employees will have to submit their first pay transparency report by no later than May 15, 2020. Employers with between 100 and 249 employees will have submit their first pay transparency report by no later than May 15, 2021.

The Human Resources Take Away

Employers of all sizes need to consider whether they are maintaining pay equity and equal pay in accordance with the Pay Equity Act and the ESA. With the recent increase to minimum wage and the new April 2018 equal pay requirements, now is the right time to review employee wages across the board and ensure there is no unintended breaches of these Acts.

There is also a need to prepare for the Pay Transparency Act. Even if it may not immediately apply to smaller employers, it may be a good corporate practice to implement.

Leslie Dizgun, the co-author of this article conducts a sophisticated commercial litigation and employment law practice at the law firm of Brauti Thorning Zibarass LLP. For further information on this topic, Leslie’s contact information can be found online at BTZLaw.ca

This post has been republished by HR Insider. If you’re a subscriber to HR Insider you can see the article there at: https://hrinsider.ca/equal-pay-in-the-ontario-workplace/ 


 

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Stealth in a Mareva Injunction: Ontario’s First Ex Parte Appeal

This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc.: Stealth in a Mareva Injunction: Ontario’s First Ex Parte Appeal.

The Mareva injunction is the best tool available for victims of fraud by ensuring that a defendant’s assets do not vanish before a plaintiff can collect on a judgment. Especially in the context of an alleged fraud, Marevas are typically sought ex parte–without notice– to the defendants. It is not difficult to see why. If given advanced notice that their accounts may be frozen, accused fraudsters may dissipate their assets leaving themselves judgment proof and their victims without recourse.

In the case of 2092280 Ontario Inc v Voralto Group Inc. 2018 ONSC 2305 (“Voralto”), the appellant-plaintiffs were a landlord and contractor allegedly defrauded by the respondent-defendants in a waste scam. Waste scams are a common fraud that involve the illegal dumping of waste on private property freeing the perpetrators of proper disposal costs. The plaintiffs brought a motion ex parte for a Mareva to freeze the defendants’ bank accounts.

The motion judge refused. Instead, it was ordered that the motion be brought back with notice to the defendants. The motion judge reasoned:

In light of the delay in pursuing a remedy, the delay in advancing this claim for injunctive relief, the fact that the defendants have not been served, and the lack of evidence that these Defendants are dissipating assets, I am not prepared to grant relief without giving them an opportunity to respond.

The plaintiffs sought to appeal on the belief that giving notice to the defendants would defeat the entire underlying purpose of a Mareva injunction. The Rules of Civil Procedure (the “Rules”), however, provide no mechanism to appeal an Order without notice to the defendants. Rules 61.03 and 62.02 of the Rules, which govern appeals to the Divisional Court from an interlocutory order, require that notice be given to the opposing parties.

The plaintiffs therefore sought an unprecedented order permitting the motion for leave to appeal and the appeal to be heard ex parte on the basis that requiring the plaintiff to give notice would again be self-defeating. The Divisional Court agreed and the motion for leave to appeal and the appeal were heard without notice to the defendants.

At the appeal, the plaintiffs argued that ex parte motions are brought in two separate and unique contexts. The first being urgency; where there is not enough time to serve a defendant. The second, and the context applicable to Marevas, being stealth. They argued that delay or timeliness is not a relevant factor for ex parte motions brought in the context of stealth. They relied on the fact that timeliness is not one of the five requirements for a Mareva injunction as set out in the case law.

The Divisional Court held that:

While delay may be a relevant factor in some cases, particularly where urgency is alleged as a basis of moving without notice under Rule 37.07 (3), it is not a relevant factor where a risk of dissipation of assets is the basis for moving without notice under Rule 37.07(2).

Ultimately, the Divisional Court allowed the appeal and granted the Mareva injunction, reasoning that:

The Mareva injunction is an important tool for Plaintiffs to try and recover their losses due to fraud or theft. A requirement to notify the perpetrators of a fraud in advance of an impending Mareva injunction would significantly waterdown an important remedy for protecting innocent victims. Judgments for damages cannot reasonably be expected to be affordable or collectable against fraudsters. If funds cannot be frozen in advance, a vital arrow in the civil law’s quiver to address serious fraud will be lost. This is a narrow exception to the general rule against prejudgment execution. It is therefore a remedy that is not readily available. However, where evidence discloses a strong prima facie case that Defendants perpetrated a premeditated, substantial fraudulent scheme against innocent victims, the law’s reluctance to allow prejudgment execution must yield to the more important goal of ensuring that the civil justice system provides a just and enforceable remedy against such serious misconduct.

To conclude, in Voralto, the Divisional Court has recognized the importance of stealth in the context of fraud and motions for Mareva injunctions. This case will act as a strong precedent for fraud-victims seeking civil remedies and provide a process for appealing ex parte orders where stealth is key.

P. James Zibarras and Justin W. Anisman of Brauti Thorning Zibarras LLP were counsel for the successful appellants. They can be contacted for further details about this decision.

 


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.