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Marijuana at Work after Legalization

The Canadian and Ontario governments have now announced the Rules and Regulations for marijuana, which is set to become legal across Canada for recreational use in October of this year. The legalization of marijuana raises many new challenges and concerns about the effect on workplace safety.

Can recreational marijuana be used at work?

Short answer: no. The Ontario regulations only permit the use of recreational marijuana in private residences. Use elsewhere, such as in cars, public parks, or workplaces can result in provincial offences and fines up to $5,000.

Ontario’s rational for this law is “to protect people from second-hand cannabis smoke, and reduce youth and young adult exposure to cannabis.”

Can an employee be high at work?

Impairment is a long standing issue in the Ontario workplace and marijuana use will complicate things further. Marijuana has psychotropic effects which, like alcohol, can impair judgement, however a direct connection to workplace incidents has not been definitely established. Maclean’s released an article on the health effects of marijuana in the workplace and reported that:

Several studies have examined the impact of marijuana use on workplace outcomes, but with mixed results.

Some have found associations between marijuana use in the workforce and work absenteeism, reduced productivity, job turnover, disciplinary measures, workplace accidents and injuries, unemployment and interpersonal conflict.

However, other studies have found no association with some of these outcomes. Overall, the evidence to date is quite inconsistent.

In 2017, the U.S. National Academy of Sciences published a major report on the health effects of marijuana use, including impacts on injuries and accidents in a workplace setting.

Based on six studies, the review did not find enough evidence to either support or refute a statistical link between marijuana use and occupational injuries or accidents.

The Occupational Health and Safety Act (OHSA) already imposes strict obligations on employers to keep their employees and workplaces safe. These obligations include ensuring workers are not introducing hazards to the workplace as a result of impairment arising from marijuana use.

What obligations an employer has will depend on the individual circumstances of the workplace. The appropriate policies and measures will be different. For example, if an employer, manager or supervisor becomes aware that a worker who operates heavy machinery appears to be impaired, the appropriate steps would be different from an employee who works at a desk most of the day.

In all circumstances a duty is owed to ensure the health and safety of workers are protected and the OHSA is being complied with.

What about Medical Marijuana in the Workplace?

Like any other prescribed medication, Ontario employers have a duty to accommodate an employees illness, including the use of  medicinal marijuana in appropriate places around the workplace in accordance with doctor’s directions.

The duty to accommodate extends to the point of undue hardship. A prescription for medical marijuana does not entitle an employee to compromise the safety of themselves or others. Nor does it entitle them to smoke around others or in doors – Smoke-free Ontario laws apply to the smoking marijuana in the same way they do for cigarettes. However, an employer may have to permit an employee a suitable workplace accommodation to use their medication.

What should I do if I am an Employer in Ontario?

If you already have good policies in place, then they will not need to be drastically changed.

To ensure a safe and hazard free work environment, employers should conduct a risk assessment of marijuana in their workplace, then update their written measures to control the risks or, where practicable, eliminate the hazards identified from substance abuse. It may be a good idea to provide training to management or supervisors on the signs of marijuana intoxication.


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.

 

 

 

Video Cameras in the Ontario Workplace

Increases in affordability and availability have made video cameras ubiquitous in both public and private places across Ontario. More so than ever before employers are installing cameras in the workplace.

Video camera surveillance raises interesting employment law issues for both employees and employers. While video cameras are common place in retail stores, banks, manufacturing facilities and casinos, what about in an office environment? Or in a break room? Does an employer have to tell its employees about surveillance cameras or can they be hidden?

Right to privacy at work

The Ontario Courts have commented that the Ontario legislature “has not gone very far in safeguarding an employee’s right to privacy in the workplace.” In Ontario, there is no specific privacy legislation aimed at the private sector. Neither the Employment Standards Act nor the Occupational Health and Safety Act make any mention of an employer’s obligation or the employee’s rights regarding privacy. Only Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies.

PIPEDA requires a genuine purpose for video camera surveillance in the workplace. Or, in other words, a purpose that a “reasonable person would consider appropriate in the circumstances.” The test set out by the Office of the Privacy Commissioner of Canada (the “OPCC”) to determine the appropriateness for video camera monitoring is as follows:

  1. Is the camera demonstrably necessary to meet a specific need?
  2. Is it likely to be effective in meeting that need?
  3. Is the loss of privacy proportional to the benefit gained?
  4. Is there a less privacy-invasive way of achieving the same end?

Although its aimed at public institutions, the OPCC publishes some very instructive examples:

  • “A minor offence such as littering would, in general, not be considered a substantial or pressing problem. It would, therefore, not meet the required criteria to justify the use of video surveillance.”
  • “A dimly lit area of a public school has been the site of ongoing vandalism and violence. Before considering video surveillance, the school should evaluate the effectiveness of less intrusive alternatives such as increased lighting and foot patrols.”
  • “A video camera that monitors a parking lot indirectly captures information about adjacent properties. To limit the amount of personal information collected by it, the camera is set up to automatically avoid or black out any area or property adjacent to the parking lot.”

Legitimate purpose can be to ensure the safety and security of customers and employees, reduce or deter illegal conduct, or to reduce the risk of legal liability.

Employers must balance the need for video surveillance vs employees’ right to privacy

For purposes of deterring theft, vandalism, assault and sexual harassment, surveillance cameras may be permitted. In grocery stores, banks, manufactories, retail or restaurants, where cash and inventory are stored, there is a reasonable purpose for having cameras. Further, for employees who work in public facing places, such as at reception of a business, there may be no reasonable expectation of privacy in the first place.

On the other hand, in private locations such as washrooms and lunch or break areas it is reasonable for both employees and customers to expect privacy.

In the case of Colwell v. Cornerstone Properties Inc., Ms. Colwell sued for constructive dismissal after her employer installed a secret hidden camera in her private office. The Court did not expressly address whether video cameras are permitted in the office, but instead found that the placement of the hidden cameras, and subsequent lies, violated the implied contractual term of employment, that “each party would treat the other in good faith and fairly”, and poisoned the work environment. Subsequently the Courts have stated that “the placement of a video camera in an employee’s office without his or her knowledge is a serious and intrusive violation of the employee’s privacy.”

Video cameras may be permitted in an office if employees are informed

In a decision from February, 2018, Rouse v. Drake & Drake, Justice Conlon dealt with a wrongful dismissal action of a hygienist from a Dental Office. In this case, Ms. Rouse made her dislike for the surveillance cameras clear prior to, during, and after their installation. She was found by the Court to have “deliberately manipulated the security cameras.” The Court considered her intentional conduct, in rendering the surveillance camera in her office ineffective, as one of the factors that could justify a termination for cause. Ultimately, however, the Court decided for other reasons that there was not cause for her termination.

Audio recording is not permitted

Did you know that Amazon’s Echo can be set up to allow listening in on conversations in other rooms. Amazon calls this feature “drop in”. Given how accessible devices like these are, what is an employees reasonable expectation of privacy, when it comes to their conversations around the office?

In terms of audio recording, employers could find themselves criminally liable under section 184 of the Criminal Code if they are intercepting private conversations unless one or more of the participants consents. Practically speaking this means that conversations between employees cannot be recorded.

Take away

Video cameras can be used in Ontario Workplaces to record video, but not audio, so long as there is a genuine purpose for doing so and employees are informed. Employers should publish and circulate to their employees a video surveillance policy containing guidelines and procedures for the collection, use, and disclosure of the information obtained by video surveillance and publish signage to remove any reasonable expectation of privacy.

In addition, employers should take measures to ensure the recorded images are stored securely, with limited access, and regularly destroyed or deleted.


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.

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.

Featured on the Front Cover of Law Times

I am thrilled to be featured on the front page of law times along with my firm’s managing partner, James Zibarras.

“My Boss Got Naked in Front of Me on a Work Trip”

While exploring one of the legal forums I frequent, a person posted a question about an incident that occurred on a work trip with his boss:

I recently went on a business trip with my employer and many other employees, and I spent the night in a hotel room with my employer (just me and him in this two-bed room). While I was laying in bed reading with the lights on, he walked out of the bathroom naked to get something from his suitcase. He knew I was in the hotel room before he stepped into the bathroom.

I commented that I was uncomfortable seeing him naked, and he apologised and went back to the bathroom. He could clearly see that I was in the room (in full sight of him), and did seem phased that I saw him naked until I commented about it.

We are both male, and he only recently found out that I am homosexual (he is openly homosexual as well). 12 people went on this trip in total (2 per room) and he made the room arrangements.

He has previously invited me to go to the bar with him for drinks. I said no to this and he hasn’t asked again.

I would like to know if this constitutes workplace harassment.

Are you shouting at the screen “Yes! This must be sexual harassment”? Are you all ready to retweet #MeToo? Well, I wouldn’t necessarily jump to that conclusion.

Workplace harassment is governed by the Ontario Occupational Health and Safety Act RSO 1990 c O-1 and is defined as follows:

“workplace harassment” means,

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b) workplace sexual harassment; (“harcèlement au travail”)

“workplace sexual harassment” means,

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome;

The Ontario Human Rights Tribunal gives these examples of sexual harassment:

  • demanding hugs
  • invading personal space
  • unnecessary physical contact, including unwanted touching, etc.
  • using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names
  • leering or inappropriate staring
  • making gender-related comments about someone’s physical characteristics or mannerisms
  • making comments or treating someone badly because they don’t conform with sex-role stereotypes
  • showing or sending pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including on-line)
  • sexual jokes, including passing around written sexual jokes (for example, by e-mail)
  • rough and vulgar humour or language related to gender
  • using sexual or gender-related comment or conduct to bully someone
  • spreading sexual rumours (including on-line)
  • making suggestive or offensive comments or hints about members of a specific gender
  • making sexual propositions
  • verbally abusing, threatening or taunting someone based on gender
  • bragging about sexual prowess
  • demanding dates or sexual favours
  • making offensive sexual jokes or comments
  • asking questions or talking about sexual activities
  • making an employee dress in a sexualized or gender-specific way
  • acting paternally in a way that someone thinks undermines their self-respect or position of responsibility
  • threats to penalize or otherwise punish a person who refuses to comply with sexual advances (reprisal or “payback”).

The conduct of this employer may not clearly rise to the level of harassment. Inviting a subordinate to drinks isn’t inappropriate on its face and this boss stopped pressing once he was told no. Likewise, the incident on this business trip may simply have been a potential hazard of same-sex lodgings. This employee told his boss that it made him uncomfortable and the boss apologized and went back into the bathroom. At worst, this was a clumsy attempt at starting a sexual relationship with this employee. But, there is no mention of any conduct by this employer trying to steer conversations towards sexual subjects, making suggestive or lewd comments, pressuring this employee into initiating a sexual encounter, or threats or acts of reprisal.

In a situation like this, I would recommend the employee approach the employer, after the trip and back in the workplace, to explain that this made him uncomfortable, and that, as a result, he would prefer not to lodge with him again. He may want to follow this up with an email to keep a record.

 


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 for Part Time Work begins April 1, 2018

For Ontario employers, employing part time and temporary workers is about to become a lot more expensive. On April 1, 2018, the “equal pay for equal work” amendments to the Employment Standards Act, 2002 (the “ESA”) by Bill 148, the Fair Workplaces, Better Jobs Act 2017, come into legal effect.

Ontario employees have long had the protection of the Pay Equity Act, and similar provisions in the ESA, that prevented women (and men too) from being paid less than their peers on the basis of sex. As of April 1, 2018, the ESA will now provide for an entitlement for equal pay from an employer regardless of a difference in employment status.

“Difference in employment status”, in respect of one or more employees, will now be defined as:

a difference in the number of hours regularly worked by the employees; or a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status

As a result, employers will be required to pay casual, temporary, part-time, and seasonal employees the same rate as permanent and full time employees so long as:

  • they perform substantially the same kind of work in the same establishment;
  • their performance requires substantially the same skill, effort and responsibility; and
  • their work is performed under similar working conditions.

The legislature has attempted to define “substantially the same” to mean “substantially the same but not necessarily identical.” How this will be interpreted by the Ontario Courts is anyone’s guess but likely it will be used to grant discretion to the Tribunal, Judge or Jury on whether two similar jobs are “substantially the same”.

Exceptions

Differences in pay between employees of different sex or similar employment status are permitted so long as the difference in rate of pay is the result of:

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

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.

The Process

Any employee who believes that their rate of pay does not comply with the Equal Pay for Equal Work section of the ESA, may request a review from their employer. Employers are, thereafter, required to either:

  • Adjust the employee’s pay; or
  • Provide a written response setting out the reasons for refusing.

As discussed in my article Important Upcoming Changes to the Ontario Workplace, any written response must be saved according to the new record keeping requirements in the ESA for five (5) years.


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.

Arbitration Clause in Employment Contract puts the Breaks on the Uber Class Action in Ontario

The Ontario Court has confirmed that an arbitration clause in an employment contract is generally enforceable.

Much to the chagrin of Mr. Heller and his lawyers in the proposed class action brought against Uber, Justice Perell of Ontario Superior Court of Justice stayed the lawsuit against Uber. As a result, Uber drivers in Ontario that want to sue for their rights under the Employment Standards Act, 2002 will need to do so by way of Arbitration in the Netherlands.

In the lawsuit of Heller v. Uber Technologies Inc., Heller, the proposed class plaintiff for Uber drivers across Ontario, sued Uber for a finding that they were employees, not independent contractors. If correct, then Uber drivers would be entitled to all the benefits granted to employees under the Employment Standards Act. Uber brought a motion to stay the action in Ontario—effectively ending the law suit—on the basis that when Uber drivers signed up on the “Uber App”, they clicked accept to a long list of terms and conditions that included the following clause:

Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands, excluding its rules on the conflict of laws. The Vienna Convention on the International Sale of Goods 1980 (CISG) shall not apply. Any dispute, conflict or controversy, howsoever arising out of or broadly in connection with or relating to this Agreement, including relating to its validity, its construction or its enforceability, shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such a dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”) …. The Place of the arbitration shall be Amsterdam, The Netherlands.

After finding that the International Commercial Arbitration Act, 2017, applies the Court considered:

  1. Whether the Competence-Competence Principle applied? or
  2. Whether there was some other reason to refuse to send the matter to arbitration.

The Competence-Competence principle holds that in general “a challenge to the arbitrator’s jurisdiction should be first resolved by the arbitrator.” The Court found that this principle did apply and that there were no exception to rely on that would benefit Mr. Heller. The Court held that the arbitration provision was not illegal for being unconscionable.

In short, Mr. Heller’s argument was summarized as follows:

it would be an absurd result and contrary to public policy to enforce an arbitration agreement in an employment contract and thereby deny vulnerable non-unionized employees their rights and protections under the Employment Standards Act, 2000, which precludes employees contracting out of their rights under the Act.

The Court reasoned that it was their role to interpret statute and not enact it and the Employment Standards Act does not, unlike the Consumer Protection Act, preclude arbitration clauses. Therefore, the Court held that the class action lawsuit should be stayed as a result of the arbitration clause in the employment contract, “be the result absurd public policy or not.”

What is the take away?

The decision of Heller v. Uber Technologies Inc., 2018 ONSC 718, confirms that Arbitration clauses in employment agreements are generally enforceable.


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.


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