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Employee Classification Risks

The way people view and perform work is changing and Canadians must be ready to respond. Short-term engagements, temporary contracts and independent contracting characterize this type of workforce. Organizations often rely on contractors to fill key positions, help maintain labour flexibility and keep overhead costs under control. However, any organization that uses independent contractors or is considering doing so, need to be aware of the associated risks and seek the advice of experienced legal counsel.

This article sets out to use a recent Uber class action, Uber v Heller, as a precedent to exemplify the legal and financial risks associated with how companies classify workers. We will look at how the courts make decisions on classification of workers, what protection is available to independent contract workers; and finally suggest some ways businesses can build practices to protect themselves.

Workers need to understand how they are classified, what it means; and take action when there is an issue. Employers need to understand how to create and maintain proper practices to accurately assess and classify their workforce.

Let’s look at Uber v Heller more closely.

In the Uber Class Action, the plaintiffs seek $400 million in damages as well as a declaration that Uber drivers are employees (not contractors) of Uber and therefore entitled to the benefits and protections afforded by the Employment Standards Act (ESA).

Uber brought a preliminary challenge to the proposed class action on the basis that its drivers, including Mr. Heller, were precluded from proceeding through the courts as they had instead agreed to resolve any disputes through private arbitration in the Netherlands. In the end, the action was stayed in favour of arbitration. For a more detailed review of this decision see my earlier article Arbitration Clause in Employment Contract puts the Breaks on the Uber Class Action in Ontario

Mr. Heller appealed the stay decision to the Court of Appeal claiming that the arbitration clause in Uber’s driver services agreement represents an unlawful contracting out of the ESA and that the clause is unconscionable and thus invalid at law. The Court of Appeal accepted both arguments and overturned the decision of the motion judge. I also wrote about this Court of Appeal decision: Uber Class Action Given the Green Light to Proceed by Ontario Court of Appeal

So, are Uber Drivers now classified as Employees?

The Ontario courts have yet to answer the question of classification — whether Uber drivers are classified as employees. The ruling on the classification is the larger issue in the Uber case litigation. However, at this time, the court is still determining the preliminary issues of jurisdiction and the enforceability of the arbitration clause. The Supreme Court of Canada – the highest court in our country – has granted to hear Uber’s appeal.

This case clearly demonstrates the significant impact of improper classification claims on a large company. Regardless of the outcome of the Uber case in terms of classification, the case demonstrates that clarity and enforceability of the classification system used by an employer is very instrumental in protecting employers against costly litigation such as what Uber is currently involved in.

Employers must become proactive in taking action to sharply review and assess workforce compositions and ensure that appropriate classifications are in place. Employers must also understand that a worker’s title does not determine whether they are an employee or independent contractor but that it is the nature of their employment relationship that determines the classification. As well, a worker’s actual classification may differ from what the contract specifies.

How do the courts determine worker classification?

In Sagaz Industries Canada Inc., the Supreme Court of Canada outlined some of the factors to consider in determining whether a worker is an employee or an independent contractor. In the decision, the Supreme Court of Canada makes the point that there is no single test that provides a clear answer to ever-changing variables of workforce relations (hence classification of employee versus independent contractor) and that people must examine all possible factors in the relationships to form a picture of the total relationship of the parties.

Canadian courts and tribunals have developed common law tests associated with the employment relationship to determine who is an employee and who is an independent contractor. The following are key factors considered in these tests:

  • Control
  • Ownership of tools
  • Chance of profit/risk of loss
  • Business integration
  • Payment
  • The factors are weighed and considered together in determining whether a person is an employee or independent contractor.

As an example, if the relationship looks like an employment relationship wherein the employer controls working conditions and the worker is economically dependent on the employer, the worker will likely be found to be an employee.

Worker Classification Example:

The case Fisher v Hirtz, 2016 ONSC 4768 details the scope of review and analysis necessary in determining the true legal nature of employment relationships and employee classifications therein and the impact of that classification on dismissal claims.

In this case, the plaintiff sues a company for wrongful dismissal. In the end, her claim was dismissed because the court determined she should be classified as an independent contractor not an employee. Had she been deemed an employee or dependent contractor, the court would have concluded, among other things, that she did not quit but was dismissed without cause and was entitled to pay in lieu of reasonable notice.

Employee versus contractor cases result in varying decisions on classification — there is no set formula to determine classifications. Decisions must be on a case-by-case basis involving close attention to the factors in each case. In the end, the true legal nature of the employment relationship must be identified and clarified.

In determining the true legal nature of relationships the courts look at:

  • The intentions of the parties
  • How the parties themselves regard the relationships
  • The behaviour of the parties toward each other
  • The manner of conducting their business with one another.

In Fisher v Hirtz, the court followed the tiered analysis and applied the above legal principles of established methodologies and criteria. In the end, the worker was deemed a contractor as her employer assigned the work, as it did to other trades persons, but she controlled whether she would accept the assignment.

The first stage of analysis will end once the worker is determined to be an employee. If the worker is determined to be a “contractor” the analysis will continue through a second stage to decide if they are a dependent contractor or an independent contractor.

In the case cited above, during the second stage of the analysis, the court determined she was an independent contractor as she had only provided varying amounts of services over a sixteen-month period during which she also carried on business as a sole proprietor. There was little evidence of any long-term dependency.

General Overview of Independent Contractors

Essentially, contractors are self-employed service providers who manage their own businesses.

An independent contractor has more freedom to choose how they complete work but are responsible for paying their own taxes, getting their own health insurance, and paying into unemployment and workers compensation funds. The most important factor is the level of control an employer has over the worker.

In contrast, an employee works under the control of an employer and has certain benefits provided by the employer including workers compensation, unemployment insurance, and health insurance.

Protection for Contract Employees

Canadian law has not yet caught up with changes in the labour market and contract workers are generally excluded from the protections and benefits that accompany traditional paid employment.

Gig workers are generally treated as independent contractors with none of the employment rights guarantees available in more regular jobs. The Employment Standards Act (ESA) does not apply to independent contractors, volunteers or other individuals who are not considered employees under the ESA.

How can businesses and employers protect themselves?

Practice development tips:

  • Take a proactive approach to reviewing the workforce and classifying employees accordingly. This can save a lot of headaches, potential penalties and even mitigate the risk of litigation.
  • Make sure employees are not misclassified as contractors when they should be recognized as regular staff with rights under the Employment Standards Act — contact an experienced employment lawyer for advice if necessary.
  • Regularly monitor the relationship to ensure the contractor’s independent status doesn’t change. For example, a company might hire an independent contractor who becomes more engaged in the company over years. If the company’s reliance on the individual’s services grows, the individual could be deemed an employee.

Workforce Tips:

  • If there are independent contractors who are actually being treated like employees, it may be time to change their classification.
  • At time of hiring, if a worker insists that they want to be an independent contractor and not an employee, it is advisable to investigate the situation and seek legal advice before agreeing.
  • In the event of a challenge, the practical reality will govern the classification and not what is written in a contract.

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@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning 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.

Discipline at Work in Ontario

Being fired or getting terminated for “just cause” is only one form of discipline available to Ontario employers. Often, though, termination for cause is too harsh in the circumstances and therefore not available as an option. It is important for both employees and employers to understand what other types of discipline are available and how to act in accordance with the principles of “progressive discipline”.

This article will be focusing on discipline in the workplace aside from termination. For more information on termination see one of my earlier articles: Termination of the Employment Relationship in Ontario » Legally Speaking.

What is Progressive Discipline?

Progressive discipline is a process used to deal with any job-related behaviour that does not meet expected and communicated standards or policies regarding job performance, absenteeism or lateness, or other minor misconduct. The primary purpose of the progressive discipline doctrine is to help an employee understand that a performance problem exists and to offer opportunities for improvement. The concept behind progressive discipline is that where an employee repeatedly fails to meet the expectations of the job, the disciplinary action against him will begin with mild correction action and gradually move to more serious actions as each incident occurs — eventually permitting an employer to terminate for cause.

The law does not require employment contracts to include the employer’s approach to progressive discipline however, best practices suggest an employer should set out their approach to progressive discipline in a well-written and well-communicated policy. In this regard, they are able to refer to it specifically as necessary.

Levels of Disciplinary Action

Basic progressive discipline policy provides for four levels of discipline: verbal warning, written warning, suspension and termination. There is no one single approach applied — approaches vary depending on the company and collective bargaining agreement. For example, the discipline for a first offence may be counselling in one company yet a warning in another.

Overall, effective discipline helps to correct employee behavioural issues, increase productivity as well as help to protect a company against wrongful termination lawsuits.

Levels of disciplinary action are as follows:

  • Verbal warning
  • Written warning
  • Performance improvement plan
  • Temporary pay cut
  • Loss of privileges
  • Suspension
  • Demotion
  • Termination

Termination for cause should be considered as a last resort. It is challenging to prove terminations are justified and courts only do so in the clearest of circumstances. In exceptional circumstances, immediate termination for an act of significant or severe misconduct may be appropriate but in almost all cases, employers should be guided by the principle of progressive and corrective discipline.

Rather than straight dismissal, the goal of progressive discipline is correcting poor behaviour and creating a better and more productive employee.

What should employers do?

In instances where an employee’s performance or conduct is at issue, the employer should clearly provide the employee with the following:

  • A clear explanation of the problem
  • A list of steps that should be taken by the employee to address and correct the problem
  • Assistance to the employee to help him address and correct the problem
  • A reasonable time frame in which the problem is expected to be corrected

This process applies to any of the disciplinary action levels – i.e. Verbal or written warnings, performance improvement plans etc. Employers must give employees clear messages, actionable steps, assistance and reasonable time frames to show improvement during any stage of discipline.

What Forms of Discipline Are Not Appropriate?

Employee discipline is not about dominance or punishment. As a result, in most instances, discipline that is punitive is contrary to employment law. For example, withholding pay or suspending an employee without pay is not appropriate. Subjecting an employee to humiliation in front of coworkers, demotions or cuts in salary/pay are also considered inappropriate forms of discipline. Bullying usually involves repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a particular person or group of people. It has also been described as the assertion of power through aggression. In this respect, it is punitive and not an appropriate form of discipline.

Suspension is a common form of punitive disciplinary action.

Unpaid Suspensions

According to the Ontario Court of Appeal, an unpaid administrative suspension generally triggers a constructive dismissal “unless it (is) an express or implied term of the contract that the employer (can) suspend an employee without pay.”

The Courts will assess unpaid suspensions with a higher level of scrutiny than paid suspensions. Accordingly, employers should not impose unpaid suspensions unless they are expressly permitted to do so by a contract of employment or the circumstances are such that an unpaid suspension is reasonable. In other words, if an employer imposes an administrative suspension that is neither expressly permitted by contract nor reasonable in the circumstances, they run the risk of liability for constructive dismissal damages.

Courts often look at whether the employee had the opportunity to challenge the suspension before the person who imposed the suspension in the first place. Failing to allow for this may render the suspension a constructive dismissal, wherein the employee may claim for notice for the termination of their employment and the potential for any unpaid wages during the suspension period.

A clear and well-drafted employment agreement or workplace policies and handbooks regarding suspensions will provide both the employer and employee with information on their rights.

How is the appropriate level of discipline determined?

Courts and tribunals expect employers to apply disciplinary measures fairly and consistently, taking into account any specific circumstances of the situation on a case-by-case basis.

Aside from the strict facts of the case, adjudicators consider both “aggravating” and “mitigating” factors in determining the most appropriate type and severity of disciplinary action — especially when an action as serious as dismissal is being considered. Arbitrators weigh the presence, or absence, of mitigating factors in deciding whether to uphold, reduce or rescind a disciplinary sanction.

  • Aggravating factors lead to a more substantial (harsher) penalty
  • Mitigating factors lead to a more lenient (lesser) penalty

Some examples of employee related factors that affect the level of disciplinary action taken include the following:

  • Clean employment record
  • No other disciplinary record on file
  • State of mind of employee when behaviour came into question (i.e. medical condition; emotional problems, harassment, violence etc.)
  • Whether an employee shows remorse during the investigation — i.e. admitting responsibility, offering an apology etc.
  • Wilful or Intentional insubordination and/or misconduct

Examples of some of the case related factors adjudicators consider are as follows:

  • Was the misconduct intentional?
  • Is the employee accepting responsibility for his/her actions?
  • Was the infraction an isolated incident?
  • Is this a long-term employee?
  • What is the work history of the employee?

From Policy to Practice

Policies communicate expectations to staff and guarantee that fair and consistent treatment is served to all. It is important for staff to know from the start what is expected and how their performance will be addressed should it fall short of workplace standards. Policies hold everyone accountable and need to be supported by accompanying procedures.

The following are procedures to support progressive discipline:

On-going operational procedures:

  • Hold regular manager training, and make progressive discipline policy review a prominent part of that training
  • Create a standardised form for all managers and departments to use when they write up an employee for a disciplinary infraction. Be sure they fill out the form in full.
  • Develop a system that allows easy review of disciplinary write-ups.
  • Practice early detection of issues with equal treatment of employees by different managers. Make it a point to ask about this issue during employee reviews.
  • Discipline managers if they fail to uphold company policies.

Procedures involving incompetence: Employee lacks the skills or ability to do the job.

  • Set out clear, reasonable job expectations in company policies
  • Clearly communicate job expectations to all employees
  • Bring unacceptable work to the attention of the employee promptly
  • Provide reasonable supervision, training and instruction
  • Give reasonable warning that failure to meet these expectations could result in dismissal
  • Allow for time and opportunity to meet the job expectations
  • If not improvement has emerged, dismiss the employee
  • Keep complete written records

Procedures involving misconduct: Employee breaks rules for keeping the work place efficient and safe.

Suggested steps:

  • Give the employee an opportunity to tell his/her story about the misconduct
  • Collect all the relevant facts surrounding the misconduct
  • Give a verbal warning
  • Give a written warning
  • Suspend the employee
  • As a final step in the process, dismiss the employee
  • Keep complete written records

Summary Comments

Termination of staff should be considered a last resort. The incorporation of progressive discipline in the form of policies, procedures and practices can provide effective corrective strategies to mitigate many behaviour issues and avoid disputes being taken to court. Progressive discipline is a doctrine upheld by Ontario courts, which should be part of a company policy and should be clearly communicated and adhered to.


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@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning 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.

Age Discrimination and Forced Retirement

Currently, there are approximately 1.5 million older persons in Ontario. By the year 2021, Ontario will be home to three million people over the age of 65. Older workers make a valuable contribution to this province every day.

The Ontario Human Rights Code (the “Code“) states that it is public policy in Ontario to recognize the dignity and worth of every person and to provide equal rights and opportunities without discrimination. Employment is central to an individual’s financial health, sense of worth, dignity as well as their satisfaction in feeling able to participate fully in society and be a part of a community.

So, are People Age 65 and Older Subject to Mandatory Retirement?

The answer is no, with limited exceptions.

This article reviews when mandatory retirement is permitted in Ontario. We will review:

  • Some of the protection available under Human rights legislation;
  • Explore how courts evaluate age discrimination cases and cite a couple of tribunal cases where age discrimination was allowed; and
  • Finally, we will offer some pointers for employers and outline the steps employees can take to file a claim.

The History of Mandatory Retirement

Until December 31, 2009, the mandatory retirement age in Canada was 65. At age 65, an employer could terminate your employment for the simple reason of your being 65.

The Federal government prohibited mandatory retirement in 2009. However, the prohibition against mandatory retirement has two exceptions — Supreme Court justices who must retire at age 75 and judges, magistrates and justices of the peace in Provincial courts who must retire between 70 and 75.

Other than these two exceptions, there is no law in Ontario that requires persons to retire at any age. In theory, employees can work until they no longer wish to do so or are incapable of performing their jobs.

What is Age Discrimination and How are Workers Protected?

Imposing an employment decision (such as forced retirement) based solely on age and not on the ability to do the job, is age discrimination under the Code.

In Canada, both federal and provincial human rights law protects Canadians from age discrimination. Ontario`s Human Rights Code protects anyone aged 18 and over against discrimination in employment on the basis of their age.

The Code specifically prohibits mandatory retirement – protecting employees aged 65 or more from being forced to retire, except in cases where the retirement age can be justified as a “bona fide occupational requirement”.

A bona fide occupational requirement is an employment requirement or qualification that is necessary because of the nature of the employment.

One example of bona fide occupational qualifications is mandatory retirement ages for bus drivers and airline pilots for safety reasons.

Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, may file a claim of discrimination on the basis of age with the Ontario Human Rights Commission.

The Bona Fide Occupational Requirement Test (BFOR)

The Courts justify discrimination through a test called “Bona Fide Occupational Requirement” (BFOR) which is a standard or criteria that allows an employer to “discriminate” based on an otherwise prohibited ground, if and only if there is a legitimate reason that is connected to the employee’s ability to do the job.

The “test for a BFOR” in the context of age discrimination was discussed in 1982 by the Supreme Court of Canada in Ontario v. Etobicoke. In this case, the complainant, a firefighter, was required to retire at age 60.  The Court set out a two-part test to determine whether a mandatory retirement scheme is justifiable:

  1. Subjective component: the employer must establish that mandatory retirement was imposed honestly, in good faith, and in the belief that the limitation is in the interests of the adequate performance of the work, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the [Human Rights] Code.
  2. Objective component: the employer must establish that the retirement plan is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

What’s the Bottom line?

The bottom line is that it is contrary to law for employers to require employees to retire at a fixed age, whether it be 65, or older or younger, unless the employer can establish to the satisfaction of the court or the Human Rights Commission that the established age is based on a bona fide occupational requirement.  So it is the exception, not the rule, where mandatory requirement is allowed

Employers must be able to provide evidence that the retirement age is justifiable in law. This can be best achieved through the development and communication of a retirement policy that sets out the objective justification for the retirement age. Such policies can later be relied upon in the event of any claim.

Age Discrimination Tribunal Case Review

In Kearns v. Dickson Trucking Ltd. (1988), 10 C.H.R.R. D/5700 (Can. Trib.) a 69-year-old salesman was terminated despite excellent performance. The first time the alleged reason for termination was raised was in the termination letter. The reason given was that there would no longer be a need for his position. However the employee was not declared redundant and the position was filled by a younger person. A case of age discrimination was successfully made out.

In Salter v. Newfoundland (2001), 41 C.H.R.R. D/68 (Nfld. Bd. Inq.) [Hereinafter “Salter”], the tribunal found that the factor of being a pension-eligible employee was considered in making the determination to declare the claimant redundant and that this was synonymous with considering his age. Age discrimination was found in the case.

What these two cases tell us is that an employer cannot avoid the prohibition on mandatory retirement by trying to lay off employees based on redundancy, where the real motive is age related. 

Lessons for Employers:

Employers are bound by three rules in the Code as follows:

  1. They cannot refuse to hire, train or promote people because of their age;
  2. They cannot unfairly target older workers, or other age groups, when it comes to reducing staff or reorganizing; and
  3. They must make sure that the workplace is free from discrimination, is inclusive, and respects and supports the needs of all its workers, including older employees.

In our aging population, age discrimination is common and is on the rise. Claims of age discrimination due to forced retirement are becoming increasingly common and can be costly to employers

Employers can have mandatory retirement programs based on a certain age but these programs must be based on a bona fide occupational requirement for performing the job.

Employers can protect themselves by taking the following steps:

  • Have a retirement age in place which is fixed and communicated clearly to employees, along with the explanation for why this age has been determined to be a necessary qualification for the job.
  • Incorporate the fixed retirement age in a “retirement policy” that sets out the objective and justification for that “fixed retirement age”
  • Take measures to provide a workplace that is free of ageist stereotypes and that provides an environment where older workers are treated as individuals, assessed on their own merits instead of against presumed group characteristics
  • Ensure older workers are subject to the same performance management practices as every other worker
  • Define the eligibility criteria for any voluntary retirement program
  • Share the criteria with all staff, irrespective of age, through a neutral medium such as a written document

Tips for Employees:

If you feel you are experiencing age discrimination at work there are a few things you can do:

  • If you need human rights legal advice or help filing an application with the Human Rights Tribunal of Ontario, contact the Ontario Human Rights Legal Support Centre at: 416-597-4900 or 1-866-625-5179 and speak with a Human Rights lawyer.
  • To file an application with the Human Rights Tribunal of Ontario, visit their website and follow the instructions for how to file an application.
  • To learn more about your rights, responsibilities and options, contact/hire an employment lawyer

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@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning 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.

Shifting Balance Between Privacy and Openness in the Tribunal World of Justice

Public access to court proceedings is the normal practice in Court proceedings to the justice system (courts and tribunals) as it ensures justice is administered in a fair manner, in accordance with the principle of freedom of expression, found in the Charter of Rights and Freedoms. However, until recently, openness and transparency did not extend to Ontario’s Tribunals, which make decisions on a wide range of matters

The tribunal system was initially set up with the idea that people could use it as an alternative to the court system to achieve faster, less expensive and easier resolutions. Tribunals, were part of the justice system but operated outside of the principles of openness and transparency.

This article highlights a recent decision of the Superior Court of Justice in Ontario leading case that initiated significant change to the operation of Tribunals in Ontario. We will highlight some emerging issues facing Tribunals in finding the balance between protecting privacy while being accountable to foundational principles of openness and transparency.

Tensions between privacy and openness

In this age of the Internet, the publication of justice system information can lead to serious privacy consequences. As a result, tensions arise between two competing justice values – an open and accessible justice system and the right to privacy.

Questions arise about how to protect the personal information of individuals involved in court and tribunal processes while continuing to foster openness and accountability. It is a difficult balance to reach.

Rules for privacy differ between courts and tribunals

Seeking justice through the criminal court system can be a gruelling, intimidating and de-humanizing process for individuals. This is evidenced through media coverage of high profile cases where credibility goes on trial, private lives go under the microscope and the victims forced to re-live the trauma every day in the courtroom.

The Province’s various administrative tribunals make decisions on a range of issues from landlord and tenant disputes to human rights complaints. Documents and records have in the past typically not been readily accessible. Up until May 2019 the rules of disclosure in the formal court system as well as the principles of transparency and openness were not considered a part of the tribunal system. Access to administrative tribunal records and proceedings was inconsistent — either at the discretion of the respective tribunal or through access-to-information requests under the Freedom of Information and Protection of Privacy Act (FIPPA).

What changed?

In April 2018, the Ontario Superior Court of Justice released its decision in Toronto Star v. AG Ontario, finding that the application of the Freedom of Information and Protection of Privacy Act to administrative tribunals violates the principle of freedom of expression embedded in section 2(b) of the Charter of Rights and Freedoms. The court agreed with the Star that tribunals needed to implement changes to be more open and accessible, transparent and rigorous – necessary to maintain the integrity of the system. Previously, there had been a good deal of secrecy, misinformation, selective disclosure of information, delay, and cost. The result is that the public has had no consistent right and ability to see how decisions are made and on what basis.

The decision in this case significantly transformed how tribunals operate. The outcome had broad ramifications for all judicial tribunals. The court clearly confirmed that tribunals are not simply a function of government, but have adjudicative powers like courts and need to operate openly, like courts.

Bringing Openness into the World of Tribunals

As a response to the decision in the Star case, in May 2019, Tribunals Ontario released a new policy confirming they are now guided by the open court principle and committed to transparency, accountability and accessibility in decision-making and operations.

The open court principle allows the public and media access to tribunal proceedings. It ensures effectiveness of the evidentiary process, encourages fair and transparent decision-making, promotes the integrity of the justice system and informs the public about its operation.

Openness and access to information is fundamental to gaining public confidence in the justice system and in building public understanding of how the administration of justice is maintained.

New challenges for Tribunals

Tribunals now must refine the balance between openness and the privacy concerns of vulnerable people who share sensitive personal information during proceedings. Most decisions and orders of Tribunals Ontario tribunals are available online without charge on CanLII and in some cases on boards’ or tribunals’ websites.

Privacy should never defeat the foundational principles of openness and accountability in tribunal processes, however, where individuals are involved in tribunal processes, their privacy deserves respect and protection.

Maintaining consistency in the balance of privacy and openness

The Canadian Judicial Council plays a leadership role in initiating discussions and debate about the development of electronic access policies. The Council has stipulated that it is important to encourage, to the extent possible, a consistent approach to the use of personal information by courts and administrative tribunals in their decisions and the posting of those decisions on websites.

The CJC’s model protocol on publication of personal information in court decisions, published in 2005, places the onus on judges, not publishers, to limit disclosure of personal information. It provides specific recommendations for protecting the privacy of personal information, characterized as “omitting personal data identifiers which by their very nature are fundamental to an individual’s right to privacy.” It identifies certain information, such as name and date of birth, social insurance number and financial account numbers, as being worthy of protection in written decisions because of the risks associated with disclosing them:

Concluding remarks:

  1. Openness and transparency are fundamental principles of our justice systems – courts and tribunals must respect these principles in their operations.
  2. Withholding public access to records or information for proceedings is unconstitutional and no longer allowed
  3. Privacy and protection of personal information are secondary to the principles of accessibility and transparency
  4. Development of specific electronic policies and promoting wide-spread adoption of them is an important step towards maintaining consistency in the balance of privacy and openness in the justice system.

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@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning 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.

When Can a Resignation be Retracted?

Do you know someone who tendered their resignation and then had second thoughts? Maybe they did so in anger, or based on illness or circumstances changed. You may wonder: when can a resignation be retracted?

Here you will find the answer to that and we will look at what the courts consider when making a decision. You will find some useful tips, whether you are an employer or an employee, about what you need to know and what to do.

Can an employee retract a resignation?

In brief, an employee may be able to retract a resignation that was made with clear intent, provided that they have an immediate change of heart and quickly let the employer know. However, if an employee clearly and deliberately gives notice and the employer just as clearly accepts it, it may be too late to undo.

Decisions to resign happen for many reasons and in different circumstances. The onus is on both employers and employees to take specific steps to make sure that they get the result they want. Let’s look at some circumstances.

Employees may take back a resignation in these circumstances where the:

  • Resignation has been made with intent, yet the employee has had an immediate change of heart and quickly let the employer know;
  • Employer has not yet accepted the resignation; and
  • Employer has not acted to its own detriment or suffered any expenses by reasonably relying on it

As well, an employee may take back a resignation in circumstances where the resignation was made under emotional stress, in anger or on impulse.

How is “Intent to resign” determined by the court?

Overall, the intent to resign must be deemed voluntary, clear and unequivocal and not made under conditions of emotional stress.

Let’s look in detail based on cases that have been heard by courts, how intent to resign is determined:

Case 1: Is the intent to resign clear and unequivocal?

Recently, in English v. Manulife Financial Corporation, 2019 ONCA 612, Ontario’s highest court, the Court of Appeal, confronted a case of what constitutes a “clear and unequivocal” resignation.

In this case, Elisabeth English, a 66 year old woman was a 10-year employee at Manulife Financial. Manulife Financial was considering an upgrade to its customer service department by bringing in a new computer system. Elisabeth was near retirement age and did not want to go through the training to learn the new system. In September 2016, she provided written notice of resignation, effective Dec. 31, 2016. At the time, English told her supervisor she was not certain she wanted to retire and was assured she could change her mind if she wished.

A few weeks later, she learned that the computer system was not going to be changed so she promptly asked if she could take back her resignation. Her manager did not confirm or deny the request and she kept working. However, in November, her manager informed her that Manulife was already making plans to move on, and she was asked not to return to work on Dec. 12th.

English commenced an action against Manulife for wrongful dismissal. She maintained that she should have been allowed to keep working as she had properly retracted her resignation.

What did the court decide?

  • The motion judge concluded that Elisabeth’s letter constituted a “clear and unequivocal” resignation, and that her resignation was accepted by Manulife. Accordingly, Elisabeth had not been wrongfully dismissed.
  • The Court of Appeal held that the motion judge erred in finding a “clear and unequivoical” resignation, ruling that Elisabeth’s resignation notice was equivocal given the circumstances in which she presented it to Manulife and that she was entitled to withdraw it. Elisabeth had properly advised that she had changed her mind and her supervisor had not indicated that there was a problem with this.
  • Accordingly, since Elisabeth did not in fact resign, the Court held that her termination was wrongful and awarded her 12-months’ salary in lieu of notice.

Courts carefully consider all circumstances surrounding resignations, including the employer’s response when determining “intent” to resign”.

From this case we can see that the Court considered the employee’s request to withdraw her resignation sound as it was made in a timely manner and made before her resignation had been clearly accepted by the employer. In the end, the Court found she did not have a continuing clear intent to resign. The employer had not clearly accepted her resignation and had not acted to its detriment in relying on the resignation.

An employee really can quit and take it back later if the circumstances don’t demonstrate a clear intent and a clear acceptance of the resignation.

Case 2: Is the intent to resign offered under conditions of emotional stress?

In Upcott v. Savaria Concord Lifts Inc., 2009 CanLii 41348 (Ont S.C.) after a dispute with a fellow co-worker, the employee, Barry Upcott, told both his boss and the HR manager he was fed up and said, “I’m done”. He refused to discuss the issue. He turned in his keys, made two trips to collect some belongings, left the workplace, and left a phone message for his boss to ask about picking up the remainder of his belongings from the office. The employer interpreted the employee’s actions as a resignation; quickly deleted all of his emails, disabled his email, called his home to verbally accept his resignation and advised that a follow-up letter accepting the resignation was on its way.

The employee sued the employer, alleging that he had not really resigned because he acted in a fit of anger and should have been allowed to retract his resignation.

What did the court decide?

Despite the employee expressing a clear intention to resign, the resignation was not valid and the employee should have been allowed to come back to work. The Court reasoned that:

  • A reasonable person viewing the situation objectively would not have concluded that the employee’s words and actions amounted to a voluntary resignation and;
  • A reasonable person viewing the situation objectively would have considered that the employee went through a foolish fit of anger and he would likely retract his resignation quickly after leaving the office.

By refusing to allow the employee to come back to work afterwards, the employer engaged in wrongful dismissal. The Court awarded the employee $50,000 in damages. Although a resignation may appear clear and unequivocal and an employer has accepted it, the resignation will not be valid and can still be retracted where the employee made the resignation on impulse in a state of emotional stress.

Bottom-line

So what can we learn from these cases that will help employers and employees to make the right choices and get the results they want?

Tips for Employees

  • Make sure to take ample time to “cool off” if you have had heated arguments or are upset at work. Making important life decisions such as quitting your job should be made in a calm state of mind and emotion not in the heat of the moment.
  • If you are sure of your intent to resign, always communicate it in writing to the employer in clear and unambiguous language.
  • If you intend to resign but are not entirely sure of your decision, avoid speaking with co-workers about it and do not take any actions that are associated with resigning (like clearing your desk of items and taking them home).
  • If you want to retract your resignation, timing is critical. Notify your employer as soon as possible that you wish to retract the resignation. The courts are more likely to conclude that the resignation was not valid if you promptly take steps to rescind it.

Tips for Employers

  • If an employee submits a resignation, and you wish to move ahead with it, it is best to promptly confirm, in writing, that you have accepted that offer.
  • If an employee has resigned in the middle of an emotional outburst, especially one that is entirely out of character, it is advisable to avoid acting upon it and let emotions settle.
  • Under emotionally charged situations, consider offering the employee a chance to “cool off”. Speaking to them under calmer conditions can clarify intent.
  • Consider all conditions around the intent to resign. Always evaluate the employee’s behaviour. Is it consistent with actual voluntary intent to resign or is it unusual behaviour that may be linked to mental health issues, upsetting workplace conditions or other external factors?
  • Once you have established that the employee has resigned and voluntarily intended to do so, advise the employee in writing of the acceptance of the resignation.
  • Request that all resignations be submitted in writing.
  • Make sure you are not forcing a resignation upon an employee – ultimatums or making changes to roles/positions may be perceived as wrongful dismissals.

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@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning 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.

Employee, Independent Contractor or something in between?

As an employment law lawyer, one of the most common issues I face is confusion from clients over whether they are (or a particular worker is) an “employee,” or “independent contractor.” It is important to understand how workers are classified, and what that means for them in terms of rate of pay, benefits, and legal protections upon termination. Employers must be diligent in properly classifying their workers, as failure to do so can result in serious penalties and tax consequences.

Employees vs Independent Contractors

Strict definitions for the terms “employee,” “independent contractor,” and “dependent contractor” have not been very useful, so courts have relied upon various common law tests for determining the differences between them. Despite these tests, it is not always easy to determine the proper classification of any individual worker.

Employees

A worker may be an employee under the law even if they have agreed in writing to be classified as an independent contractor, submit invoices, or use their own vehicle while completing work tasks.

If having a contract or submitting invoices doesn’t make someone an independent contractor, what does?

In determining whether a worker is an employee, there is not one single overriding factor. Each worker’s situation will be viewed independently, and several different factors will be weighed. With that being said, a worker may be an employee if some of the following factors describe their work situation:

  • The employer provides all the tools and equipment needed to perform work duties;
  • Pay does not fluctuate according to how quickly or how well work is done. For example, the worker is not paid more if a task is finished by Wednesday, instead of Friday;
  • The employer can discipline or suspend;
  • The worker does not determine what job tasks need to be completed;
  • The worker does not set his own rate of pay for his services;
  • The employer determines the location where work is performed; or
  • The employer determines when tasks need to be completed by.

If a worker is an employee under the law, then she is entitled to all the employment rights and protections found in the Employment Standards Act. These rights and protections include:

  • Minimum wage;
  • Overtime pay;
  • Vacation pay;
  • Protected leave; and
  • Notice, or termination pay in-lieu-of notice.

Independent Contractors

Factors that the Court considers in deciding on the issue are similar, but opposite, to those considerations for employees, and include:

  • The worker owns or provides the tools and equipment needed to perform work duties;
  • The worker is in business for him/her self. This means the worker has the ability to make a profit (if the work is done quickly, efficiently, or inexpensively, for example) but also that their is a risk that he looses money (if, for example, the worker under estimated his costs, or circumstances arise that make the work more expensive than anticipated);
  • The worker may be paid more or less money depending on when the job tasks are completed;
  • The worker can subcontract the job tasks;
  • The employer cannot discipline the worker but he could cancel the contract;
  • The worker can work for multiple organizations at the same time; and
  • The worker exercises some control in where or when work is done and who performs that work.

An independent contractor will not have any of the rights outlined above for employees, unless such rights have been negotiated in a valid Independent Contractor Agreement.

What does the case law say?

In Belton et al. v. Liberty Insurance Company of Canada, the Ontario Court of Appeal heard a case where the classification of insurance agents as employees or independent contractors was the central issue. Mr. Belton, and similar workers, were commissioned sales agents, selling insurance for Liberty Insurance. Each agent had signed a written employment agreement with Liberty Insurance in which they acknowledged they were independent contractors. Liberty Insurance eventually presented the agents with new contracts, which reduced their commission rates and added minimum production levels. The agents refused to sign the new contracts, and Liberty Insurance terminated their employment. The agents sued their employer for wrongful termination. The trial judge concluded that the agents were employees under the law, not independent contractors.

In reviewing this case on appeal, the Ontario Court of Appeal noted that a written agreement stating workers will be classified as independent contractors is not determinative of the proper classification under the law. The Court also outlined the specific factors the trial judge had identified as factors she had weighed in reaching her conclusion:

  1. Whether or not the agent was limited exclusively to the service of the principal;
  2. Whether or not the agent is subject to the control of the principal, not only as to the product sold, but also as to when, where and how it is sold;
  3. Whether or not the agent has an investment or interest in what are characterized as the “tools” relating to his service;
  4. Whether or not the agent has undertaken any risk in the business sense or, alternatively, has any expectation of profit associated with the delivery of his service as distinct from a fixed commission;
  5. Whether or not the activity of the agent is part of the business organization of the principal for which he works. In other words, whose business is it?

The Court of Appeal acknowledged, as the Trial Court had, that there was no direct contact allowed between the agents and their customers regarding policy changes or renewals, all of the agents had Liberty Insurance managers, the agents were not permitted to advertise using Liberty Insurance’s name, and the agents did not have any ownership rights to their customers. Therefore, that the agents were employees of Liberty Insurance, not independent contractors.

Dependent Contractors

The courts have more recently recognized a middle ground between employee and independent contractor by the classification of some workers as “dependent contractors.”

It is important to note that the courts are not creating an entirely new third category of workers with this distinction. Instead, dependent contractors are considered a subset of “contractors,” who merit different treatment upon termination than independent contractors do.

In McKee v. Reid’s Heritage Homes Ltd., the Court of Appeal heard a case which illustrates this distinction. Heritage Homes, owned by Reid, entered into a written independent contractor agreement with Nu Home Consultant Services, which was operated by its owner McKee. McKee was to advertise and sell 69 homes for Reid, for a fee of $2,500 per home sold. Reid was to have sole use of McKee’s services until the relationship ended. The 69 homes were quickly sold, and the contractual relationship continued. The relationship even continued after Reid’s death, at which time his son-in-law, Blevins, succeeded him.

Blevins eventually decided that McKee and her sub-agents should have to work as direct employees. McKee requested the new employment agreement be put in writing, but the parties were never able to reach mutually agreeable terms. The employment relationship subsequently ended, and McKee sued for wrongful termination. After examining the relevant factors, the trial court found McKee to be an employee, and awarded her eighteen months of termination pay in lieu of notice.

In reviewing this case, the Court of Appeal looked at the classifications of employees, independent contractors and dependant contractors:

I conclude that an intermediate category exists, which consists, at least, of those non-employment work relationships that exhibit a certain minimum economic dependency, which may be demonstrated by complete or near-complete exclusivity. Workers in this category are known as “dependent contractors” and they are owed reasonable notice upon termination.

The Court of Appeal went on to explain that the first step “is to determine whether a worker is a contractor or an employee.” If the first step determines the worker to be a contractor, then step two “determines whether the contractor is independent or dependent, for which a worker’s exclusivity is determinative, as it demonstrates economic independence.”

The courts have made it clear that dependent contractors are entitled to reasonable notice, or termination pay in lieu of notice. The length of notice can be specified in an employment agreement. If there is not a valid employment agreement speaking to this issue, then the length of appropriate notice will vary on a case by case basis, determined by the weighing of several factors.

Final Thoughts

It can often be difficult to determine how a worker should be classified. There are great differences in these classifications, and those differences can have a huge impact on both employees and employers.

The fact is that that vase majority of workers classified by their employers as independent contractors are not. If you are a worker, you are probably not an independent contractor. If you are an employer, that person coming into your workplace everyday is probably an employee. Regardless of what your contract may say, a Court may decide that the worker is entitled to all the protections in the Employment Standards Act.

For employees, if you have concerns that you have been improperly classified, speak to a knowledgeable Ontario employment lawyer as soon as possible. The lawyer can go over the specific details of your employment situation and give you advice on which classification is the most appropriate for you. With this information, you will know what rights are due to you while still employed, and also at the end of the employment relationship.

For employers, I also recommend speaking to an employment lawyer if you have concerns about the proper classification of your workers. Failure to properly classify workers can result in serious penalties. You may be stuck with large severance payments because your improper classifications caused you to fail to meet the notice requirements. If workers are properly classified, these are issues that can be specified to in a written employment contract. This limits your overall exposure. A lawyer well-versed in such employment issues can help you make the best decisions for your business.


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@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning 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.

Employment Law for Bartenders, Waiters and Waitresses

Bartenders, waiters and waitresses, or “Liquor Servers” as they are referred to in the Employment Standards Act (“ESA”), are given special treatment under the law and by the Ontario Courts. While many of the ESA’s provisions apply equally to all types of employees, there are some important distinctions for liquor servers that hospitality employees and employers should know. This article is meant to highlight some of those important differences.

Minimum Wage

As of January 1, 2018, minimum wage for most workers in Ontario was increased to $14.00 per hour. However, the ESA permits lower minimum wage rates for certain designated groups of workers who receive tips as a significant portion of their income. Liquor servers fall into this category. Since January of 2018, the minimum wage rate for liquor servers is $12.20 per hour.

While the terms “Liquor Server” or “Bartender” are not specifically defined in the ESA, the relevant section on minimum wage provides helpful insight into whether an employee’s minimum wage rate can legally be lowered to $12.20 per hour. The ESA states as follows:

Determination of Minimum Wage
23.1 (1) The minimum wage is the following:
1. On or after January 1, 2018, but before October 1, 2020, the amount set out below for the following classes of employees:
ii. For employees who, as a regular part of their employment, serve liquor directly to customers, guests, members or patrons in premises for which a licence or permit has been issued under the Liquor Licence Act and who regularly receive tips or other gratuities from their work, $12.20 per hour. [emphasis added]

Minimum Wage After October 2020

As suggested in the above section, after October of 2020, the minimum wage rate for liquor servers will increase in accordance with a formula based on the Consumer Price Index. This formula is as follows:

Previous Wage × (Index A/Index B) = Adjusted Wage

In which:

“Previous wage” is the minimum wage rate that applied immediately before October 1st of the year;

“Index A” is the Consumer Price Index for the previous calendar year;

“Index B” is the Consumer Price Index for the calendar year immediately preceding the calendar year mentioned in the description of “Index A;” and

“Adjusted wage” is the resulting new minimum wage rate.

Termination, Reasonable Notice, and Wages

Like all employees in Ontario, liquor servers are entitled to a certain amount of notice, or pay in lieu of notice, when their employment is terminated.

That being said, for liquor servers, more often than not a significant portion of their income comes in the form of tips. Therefore, the biggest question I get as a Toronto employment lawyer, from both employees and employers, is whether tips should be included as wages for the purpose of pay in lieu of reasonable notice. The answer to that questions depends significantly on whether the bartender or liquor server has a valid employment contract that limits notice only to those minimums under the ESA.

Under the ESA, Wages Do Not Include Tips

Under the ESA, generally when an employer terminates an employee who has been continuously employed for at least 3 months, the employer must provide the employee with notice, or pay in lieu of notice. This pay in lieu of notice is often referred to as “termination pay.” The amount of written notice required by the ESA is as follows:

Employment Period Notice Length
3 months – less than 1 year 1 Week
1 year – less than 3 years 2 Weeks
3 years – less than 4 years 3 Weeks
4 years – less than 5 years 4 Weeks
5 years – less than 6 years 5 Weeks
6 years – less than 7 years 6 Weeks
7 years – less than 8 years 7 Weeks
8 years or more 8 Weeks

If an employee, by an enforceable employment contract, is only entitled to the minimums under the ESA, then that worker may NOT be owed tips. Wages under the ESA are defined as:

“Wages” means:
(a) monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied,
(b) any payment required to be made by an employer to an employee under this Act, and
(c) any allowances for room or board under an employment contract or prescribed allowances,
but does not include,
(d) tips or other gratuities,
(e) any sums paid as gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency,
(f) expenses and travelling allowances, or
(g) subject to subsections 60 (3) or 62 (2), employer contributions to a benefit plan and payments to which an employee is entitled from a benefit plan. [emphasis added]

Without an Enforceable Termination Clause, Tips Are Owed as Part of Termination Pay

Without an enforceable clause in an employment contract which limits reasonable notice to only the ESA minimums, the Ontario Courts ignore the strict wording of the ESA and require employers to pay tips as part of wrongful termination pay.

We can see an example of this in the case of Giacomo Violo v. Delphi Communications, Incorporated. Violo had worked as a waiter and bartender for a small restaurant in Ontario for 29 years. At the time of his termination, he was 51 years old. The parties did not have an employment contract, and the restaurant contended that Violo had been legally terminated due to excessive tardiness, alcohol abuse, and discourteous behaviour. After examining the evidence, including work records from the defendant and testimony from current employees, the Court determined that “there was no cause for the plaintiff’s dismissal.” The Court then turned to the issue of determining the reasonable notice period Violo was due. After examining numerous factors, including Violo’s age and the availability of similar jobs at the time he was terminated, the Court determined Violo was entitled to a reasonable notice period of 15 months. The Court then addressed the issue of damages, noting that tips would be factored in as such wages constituted a significant portion of his overall income: “… in 2010 he claimed $9,025 in tip income, almost as much as his income from wages.” In total, Violo was awarded $45,250, representative of his base salary and tips over the course of the 15 month notice period.

Final Thoughts

For employers, it is important to have a valid written employment contract with all bartenders, waiters, and waitresses. While the amount of notice cannot be below the minimum amount required by the ESA, employers can fashion contracts which provide for less notice than the employee would otherwise be entitled to at common law. When it comes to employees who receive customary tips, this can mean a substantial difference in the amount of termination pay. If you need assistance drafting employment contracts, we strongly recommend that you speak to an experienced employment attorney for guidance and assistance.

For terminated employees who received tips as a significant portion of their overall income, it is crucial to remember that they likely have rights under the common law that are far greater than the rights afforded to them under the ESA. It may be best for liquor servers and waitresses to sue their former employer in court for “wrongful dismissal,” seeking additional damages which would include tips. If you have been recently terminated from a position where you received tips as part of your income, we suggest that you speak to an employment attorney to help you determine the best course of action for your situation.


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@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning 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.

Workplace Harassment, Health and Safety

All workers should have the ability to complete their job duties in a safe work environment. Unfortunately, workplace harassment is a very real problem that many workers have to face. In the past, workplace harassment was largely governed by Section 5(2) of the Human Rights Code, and common law rules of contract. However, in December of 2017, expansive changes were made to the Ontario Occupational Health and Safety Act (the “OHSA“), making it the cornerstone of workplace legislation. The OHSA now sets out the rights and responsibilities of all parties in a workplace, including both employers and employees. Notably, the OHSA is not limited to specific grounds of discrimination, such as age, sex, or national origin. Thus, employers are now required to have a policy which generally addresses harassment in all its forms and from all people.

Workers can face harassment in any workspace, from any individual, in a variety of ways. While the harassing individual might be a fellow employee, supervisor, or owner, the individual does not necessarily have to be someone employed by the employer. The harassing individual may be someone that the worker is required to interact with during the course of completing her job tasks. For example, interacting with a customer or a patient. The harassing individual might not have any professional connection to the workplace, such as a domestic partner of a fellow employee.  The OHSA defines a worker’s workplace as “any land, premises, location or thing at, upon, in or near which a worker works” (section 1). The range of unwanted behaviours can vary from offensive statements all the way to physical violence.

Workplace Harassment

The OHSA defines workplace harassment as “engaging in the course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome” (section 1.5(a). This definition also includes workplace sexual harassment. When we hear the word “harassment,” often scenes of physical violence or unwanted touching come to mind. However, workplace harassment also includes psychological harassment.

Workplace harassment can take many forms, but typically involves unwelcome words and/or actions that are known, or should be known, to be offensive, humiliating, or demeaning. Workplace harassment can also include behavior that intimidates a worker. Common examples include:

  • Making offensive or intimidating remarks and/or jokes;
  • Displaying or circulating offensive or intimidating pictures or written material;
  • Making offensive or intimidating phone calls;
  • Sending offensive or intimidating text messages or e-mails; or
  • Making unwanted sexual advances. See my earlier article on Sexual Harassment in Ontario for more information on that topic.

In most situations, the unwanted conduct occurs more than once. The offensive behaviour might take place over the course of a day, or over weeks or months. For example, a fellow employee who sends several racially offensive e-mails to another employee is most likely engaging in workplace harassment. While less common, it is possible that the offensive conduct only occurs once. For example, one unsolicited sexual advance from a manager towards an employee.

While the OHSA gives employees experiencing workplace harassment greater protections, it does not provide such an individual with the right to refuse to work, as one would have if she had reason to believe she may be endangered by workplace violence. Workplace harassment can easily escalate to threats of, or actual, physical violence. It is vital therefore that employers and employees work together to address and deal with workplace harassment properly before the situation turns into workplace violence.

Workplace Harassment Policy

The OHSA requires that employers prepare a policy on workplace harassment, and review the policy, at minimum, on a yearly basis. This is a requirement for all employers, regardless of size or number of workers. If there are six or more workers regularly employed, this policy must be in writing and be placed in a conspicuous location within the workplace. The workplace harassment policy should contain several pieces of information, including but not limited to:

  • Language on the employer’s commitment to properly handling workplace harassment;
  • A statement concerning the various sources workplace harassment may stem from, such as supervisors, fellow employees, customers, and domestic partners; and
  • Details concerning the responsibilities of each individual in the workplace in addressing workplace harassment.

The workplace harassment policy should encourage workers to report any and all harassment concerns they have. Once the policy is completed, it should be dated and signed by the highest level of management, such as the President or Chief Executive Officer.

Workplace Harassment Program

In addition to the workplace harassment policy, the OHSA requires employers to develop a program to implement the policy. This program must be developed in consultation with the joint health and safety committee or health and safety representative. Once completed, this program must be put in writing. This program must comprise several components, including but not limited to:

  • Procedures for workers to report workplace harassment to the employer or supervisor;
  • Procedures for workers to report workplace harassment to someone other than the employer or supervisor in the event the employer or supervisor is the alleged harasser;
  • Details on how the reported complaints of workplace harassment will be handled and investigated;
  • Details on how disclosure of identifying information will be handled; and
  • Details on how the individual who reported the workplace harassment will be informed of the results of the investigation and of any corrective action.

Once a harassment policy and program have been established, the OHSA requires the employer to provide appropriate instruction to all workers on their contents. Under the OHSA, workers include not only full-time employees, but also part-time, contract, and temporary employees.

Final Thoughts

While implementation of the OHSA’s requirements, including creating a workplace harassment policy and program, have made great strides in curbing workplace issues, it is important to remember that even the best efforts will not be able to solve every situation. Workplace harassment can all too easily turn into violence. The police should be immediately contacted if a threat of violence, or an act of violence, has taken place in the workplace.

The OHSA is also a complex piece of legislation, and failure to follow the appropriate requirements and measures can be costly mistakes for employers. If you are an employer and need help in determining your compliance requirements, we recommend that you consult with a lawyer. If you are an employee who has experienced unwanted workplace conduct, we also recommend that you consult with a lawyer to help protect any rights that may be available to you.


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@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning 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.

Time to Update your Workplace ESA Poster

The Ministry of Labour has just released version 8.0 (January 2019) of its mandatory Employment Standards Act poster. The poster is available in multiple languages on the Ministry of Labour website, but you can downloaded it English right here:

All workplaces governed by the Employment Standards Act (the “ESA“) are required to:

  1. Display this poster in a conspicuous place;
  2. provide a copy to each current employee;
  3. provide a copy to all new employees within 30 days of hiring.

Employees can be provided with a physical copy of the the poster or it can be sent to them electronically. Failure to do the above is a breach of the ESA and can have serious consequences for employers.


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.

Uber Class Action Given the Green Light to Proceed by Ontario Court of Appeal

The Ontario Court of Appeal has now ruled that the proposed class action law suit against Uber is not barred by the Arbitration Clause in Uber’s contract.

I last wrote about the case of Heller v. Uber Technologies Inc. in March 13, 2018 in my article Arbitration Clause in Employment Contract puts the Breaks on the Uber Class Action in Ontario. At that time, the Honourable Mr. Justice Paul M. Perell found, among other things, that:

  • the plain language of the Employment Standards Act (the “ESA“), does not restrict the parties from arbitrating; and
  • the arbitration clause was not unconscionable.

Interestingly, Justice Perell seemed to believe that the legal result was “absurd public policy”.

It will come as a relief not only to the thousands of Uber Drivers but many employees in Ontario, that the Court of Appeal has reversed 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.