Ontario’s Employment Standards Act, 2000, SO 2000, c. 41, governs most employees’ basic, statutory rights and entitlements for employment.
Part VII.1 (section 21.2) contains the so-called “three-hour rule”.
Pursuant to the three-hour rule, subject to a few exceptions, if you regularly work more than three hours in your work day, but on any given day you are required to attend work, but not given the opportunity to work at least three hours, despite that you are available to do so, you are entitled to be paid your wages for three hours of work, even though you were not permitted to work that minimum time.
Usually you will be entitled to your regular wages for this top-up under the rule.
However, the rule may not be triggered if your employer cannot offer you work on that day for this minimum period due to circumstances beyond your employer’s reasonable control, such as lightning, power failure, fire, storms and other types of circumstances legitimately preventing your employer from employing you that day for this minimum period of time.
Similarly, you may not be protected by the three-hour rule if you ordinarily work a regular shift of three hours or less, or if you are employed as a student in certain positions, like a children’s camp, a program focused on children or in a charity-based position.
So, if you show up for work, but are told you can only work one or two hours, when you ordinarily work more in your usual work day, you might consider invoking the three-hour rule for a top-up.
Background checks of potential employees and volunteers has always been an important recruiting and screening tool for potential employers.
Ontario has overhauled its legislation, effective November 1, 2018. Now, the Ontario government has applied uniform, standardized checks available and the information that can be obtained. No more discretionary decisions by the local police service. Everybody now follows the same rules.
Firstly, now an employer can only request a potential employee to provide a “police record check” if the employee consents. If that consent is given, the information may only be disclosed initially by the police service to the potential employee whose background is searched. Only if the employee consents, after receiving and reviewing the results, may the police service give the information to a third party, such as a potential employer.
Accordingly, hiring employers can no longer obtain the background search results directly from the police service, even if the potential employee consents.
If, for example, an employer offer contains a condition for a background check, the employee candidate must: (a) consent; and (b) obtain and review the check results directly and, after doing so, deliver those directly to the employer.
Secondly, there are now three, specific kinds of checks available:
 Criminal Record Check:
The basic one, giving the least amount of information; namely:
criminal convictions that have not been pardoned; and
findings of guilt under the federal Youth Criminal Justice Act, but these records may only disclosed entirely separately and cannot be disclosed to a potential employer, unless expressly permitted by the Youth Criminal Justice Act (which is very restrictive and does not help most employers in Ontario).
 Criminal Record and Judicial Matters Check:
This check gives the information available from a criminal record check, but also access to:
criminal convictions, where an absolute discharge was granted, if the request is made less than one year after the absolute discharge;
criminal convictions, where a conditional discharge was granted on conditions in a probation order (if the request is made less than three years after the conditional discharge);
every outstanding charge or arrest warrant for a criminal offence; and
every court order made against the individual, with certain exceptions.
This check is the most common for employers to request when hiring a new employee.
 Vulnerable Sector Check:
The most robust yield of information, but the most restricted check. It can only be requested, effectively, for people with access to vulnerable persons, being anyone whose age, disability or other circumstances makes them dependent on others, or at a greater risk of being harmed by a person in a position of trust or authority.
The additional information from this check includes:
every criminal conviction, where a finding of not criminally responsible on account of mental disorder was made (if the request is made less than five years after the date of the finding or absolute discharge); and
any non-conviction information authorised for exceptional disclosure in accordance with the act – a very high test.
For exception disclosure, it only applies to offences:
are defined by the specified offences regulation;
for which the alleged victim was a child or vulnerable person; and
when the police record check provider has reasonable grounds to believe that the person subject to the check has been engaged in a pattern of predation indicating that the person presents a risk of harm to a child or a vulnerable person, based on:
whether the person appears to have targeted a child or a vulnerable person;
whether the person’s behaviour was repeated and was directed to more than one child or vulnerable person;
when the incident or behaviour occurred;
the number of incidents; and
the reason the incident or behaviour did not lead to a conviction.
Police Record Checks Reform Act, 2015, SO 2015, c. 30 (effective Nov. 1, 2018).
Need an effective workplace policy for background checks and procedures?
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In Ontario, a wrongfully dismissed employee with no employment contract specifying severance entitlement is entitled to damages at common law. These damages are commonly calculated based on a reasonable notice period and pay in lieu of not being provided that reasonable notice of termination. Dismissed employees also have a duty to make reasonable efforts to seek and obtain similar employment to offset these damages (i.e., a duty to mitigate).
The seminal case in Ontario, Bardal v. The Globe & Mail Ltd., establishes the basic test to determine an appropriate notice period for an employee who has been terminated without cause. The Bardal test effectively requires the Court to undertake a very contextual analysis of the case, with special attention to certain factors, including the character of employment, length of service, age and availability of similar positions. These factors are generally examined on a case-by-case basis and they are weighted in each, specific case by the Court to calculate a reasonable notice period. Employers may also be forced to pay more damages if the manner of dismissal was unfair or in bad faith.
Many employers, employees and even some lawyers are confused by, or do not fully understand, the factors that are to be applied to determine a reasonable notice period and, therefore, how to calculate a dismissed employee’s potential severance pay.
Some lawyers may refer to the ‘one month per year of service’ approach – this is incorrect and not the law in Ontario. In fact, there is no cookie-cutter, mathematical formula to calculate severance pay; rather, these several factors must be examined contextually in each case and weighted based on their importance in the specific case.
DURATION OF EMPLOYMENT:
Length of service is only one factor to consider. While generally, the longer the length of service, the longer the reasonable notice period will be, this is not true in every case. Employees terminated after a relatively short period of employment may be entitled to a comparably longer notice period and, therefore, disproportionately more severance pay, depending on the other factors in the case.
Duration of employment, on its own, should not determine severance pay entitlement – it is a factor only, albeit a potentially important one in the case.
Generally speaking, older employees are entitled to more reasonable notice and, as a result, more severance pay. This is so to reflect the increased challenges older employees are likely to face in re-entering the workforce verses their younger counterparts.
However, again, age is not determinative of reasonable notice and younger employees should not assume they have no entitlement to severance pay – that is very likely not the case.
NATURE AND TYPE OF POSITION HELD:
Historically senior, managerial, supervisory or employees with specialized skills, training or responsibilities are likely entitled to more reasonable notice. However, a trend is emerging in Ontario to focus less on the position held on termination in favour of paying more attention to the availability of comparable opportunity to the employee and any challenges the employee may face in securing that alternative employment.
In any event, it is still the case in Ontario that an employee with more responsibility is generally entitled to more severance pay – it remains an important factor to consider.
In addition to the Bardal factors for calculating severance pay, other factors may also arise to amplify reasonable notice entitlement depending on the specific case, such as:
if the employee was effectively lured away from an existing position, recruited or induced to accept employment with the terminating employer;
if the employee is faced with non-competition, non-solicitation or other limitations or restrictions on his or her ability to find suitable, alternative employment (which typically arise in an employment contract);
if the employee suffers from a physical, emotional or mental health-related disability or condition, or has special family status obligations, for example, creating special challenges for the employee to mitigate his or her termination and resulting severance pay; and/or
if the employer alleges cause for the termination, refuses to provide a reference, or otherwise alleges justification for terminating the employee, making it more difficult for the employee to find alternative employment.
THERE’S NO APP FOR THAT:
Severance pay tools, apps and calculators are increasingly appearing online, sometimes by providers located outside of Ontario.
However, there is no specific formula available to calculate severance pay entitlement – every case will be different, based on the specific circumstances of that case. Generally, lawyers and the Court will consider awards in other, possibly similar cases, but no two cases are ever the very same.
Terminated employees should, therefore, be wary of relying on online tools to calculate entitlement to reasonable notice damages and severance pay. Truly, the best and most reliable way to determine your potential entitlements if you are wrongfully terminated is to speak to a qualified, experienced employment law lawyer.
This article was also published by The Lindsay Advocate on March 7, 2019 (lindsayadvocate.ca). Authors: Ryan O'Neill of WARDS LAWYERS PC and Laura Gadsden.
While the thought of the lake lapping the shore is not exactly top of mind these days, we Canadians do what we must, keeping warm in winter with reveries of cottage life, when the sun will shine again.
The question of where your property ends and Crown land begins along the shoreline is a topical issue for property owners bordering water. The growing concern surrounding climate change, including the decline of water levels and erosion of shorelines, threatens to muddy the waters even further.
So where does a waterfront property owner stand in 2019? It is commonly thought that a property abutting water extends to the natural boundary of the lake or river, while the Crown owns the foreshore, meaning the bed of land under the water. Seems pretty straight forward, right? Not exactly.
High water mark vs. Low water mark
Water levels on Ontario lakes and rivers do rise and fall with the seasons. This fact of nature is exacerbated in the Kawartha Lakes region, where the Trent-Severn Waterway plays with water levels even more. As a result, a cottage owner’s shoreline is subject to some change. There have been several cases in the courts over the years that consider whether land extends to the high water mark (the highest point the water reaches land) where surveyors have traditionally placed boundaries, or the low water mark (the lowest point that water recedes to), also referred to as the water’s edge.
Lakeside properties often sit on modest 100 foot wide shorelines, and many cottagers are naturally tempted to maximize their privacy and enjoyment. Examining original patents, along with multiple grants and surveys registered on the property, can raise conflicting information as to your shoreline boundaries.
The skinny on the law of the shoreline is largely motivated by common sense. The courts determine a boundary on water based on the facts on a case by case basis. This essentially means that if a boundary line is in dispute, there is no presumption in the Courts that your property line goes to the low water or high water mark. A property owner inclined to argue shoreline claims must be prepared to put forth evidence to support it.
The common law has given some guidance as to how they consider evidence to determine a boundary on water. Topping the list, for example, are natural boundaries, original markers, original surveys registered on the property, and barriers, all of which are given greater consideration over descriptions of property boundaries alone. So, if you are tempted, as you gaze upon an original patent from 1862, tarnished and quaintly framed on the wall of your cottage by the previous owners, to argue for 15 more feet of shoreline, you should consider what story the evidence tells, and whether it would be worth the time and cost. Prospective buyers would be well advised to order an updated survey from an Ontario land surveyor, and make the purchase conditional on being satisfied that it meets expectations. In some cases, property owners with cottages built close to the water from several decades ago, may even discover that they do not own the land their cottage is built upon. If this is the case, you may apply to the municipality to purchase the lot.
A Natural Increase or Decrease in Property along the Shoreline
What happens if your waterfront increases as a result of a decline in water levels or a washing up of sand or soil along the beach? This is legally referred to as accretion, but it must be a gradual, slow process which occurs naturally over time. A cottage owner dumping a truckload of soil in the lakebed to increase his/her waterfront would not cut the mustard. While it is feasible to argue that accretion entitles the owner to the whole of the “new land,” recent cases have been known to divide it between private property owners and the Crown. One would have to weigh the cost of applying to have the new land registered on title, and any resulting litigation that may occur, against how much land stands to be gained. On the opposite end of the spectrum, lakeside property owners should be aware of increasing erosion of their shorelines, which threatens to reduce their property. Owners are entitled to take measures like erecting structures to control erosion, however, municipal approval and the approval of the Trent Severn Waterway would need to be obtained.
Rights of owners whose property border water
The three levels of government in their collective management of our lakes and rivers, and/or other private property owners can have a negative impact on our property enjoyment along the waterfront. Regardless of shoreline ownership, an individual whose land borders water possesses certain rights, referred to as “riparian rights” that are useful to keep in mind. Some of these rights include the right of access, right of the natural flow and quality of water and the right to take water for personal use. A property owner whose rights have been impeded has recourse in law against any government entity or other private property owners responsible.
So, when you are sitting on the dock this summer with a coffee or cocktail in hand, watching the graceful loon run along the water, don’t be too envious that he doesn’t give a hoot where he fishes.
Collaborative family law is a way for you to resolve your relationship breakdown issues more respectfully -- without going to Family Court. It is a better alternative to an acrimonious, traditional battle in Court, with high stakes and high legal expenses. It is, basically, a much better way, which many lawyers and other family law professionals now support and encourage.
This alternative offers you and your former spouse or partner the support, protection, and guidance of your own lawyers, but also the benefit of child and financial specialists, family professionals, and other experts, if they would be helpful in your circumstances, working together on your team.
For the collaborative alternative, you commit to:
Negotiate a mutually acceptable settlement without having the Family Court decide issues for you.
Maintain open communication and information sharing.
Create shared solutions acknowledging your priorities and objectives, including to live independently in future.
Manage your legal expenses in an informed, constructive way.
Achieve an outcome that is decided upon by you, with the support of your own lawyer, not by a third party, like a Judge.
You can find more information about collaborative family law here:
Overtime pay in Ontario is governed by Part VIII of the Employment Standards Act, 2000 (the “ESA”).
In a nutshell………
Many employees in Ontario are entitled to overtime pay. For most employees, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers, overtime begins after they have worked 44 hours in a work week. Their hours after 44 must be paid at the overtime pay rate. Overtime pay is 1½ times the employee's regular rate of pay (often called "time and a half”). Unless An employment agreement or collective bargaining agreement provides otherwise, an employee does not earn overtime pay on a daily basis by working more than a set number of hours per day. Overtime is calculated only: on a weekly basis; or over a longer period under an “averaging agreement”.
However, there are some exceptions. Some employees have jobs that are exempt from overtime pay under the ESA. Others may work in jobs where the overtime threshold is more than 44 hours in a work week. For example: EMS, healthcare and health professionals; manufacturing, construction and mining; hospitality services and sales; transportation; agriculture, growing, breeding, keeping and fishing; household, landscaping and residential building services; government employees and professionals. More information about exemption from overtime pay can be found at: www.ontario.ca/document/your-guide-employment-standards-act/overtime-pay.
In addition, managers and supervisors do not qualify for overtime if the work they do is managerial or supervisory. Even if they perform other types of tasks that are not managerial or supervisory, they are not entitled to get overtime pay if these tasks are performed only on an irregular, or exceptional, basis.
Furthermore, employers may be permitted to have written overtime averaging agreements with their employees. If so, they agree to average the employees’ hours of work over a period of two or more weeks to calculate overtime pay – effectively, employees would only qualify for overtime pay if their average hours worked per week during the averaging period exceed 44 hours. For non-union shops, averaging agreements must terminate two years after made. Any averaging agreement must be approved by the Ministry of Labour and, if so, the agreement cannot be revoked before the termination date, unless otherwise agreed. This Ministry approval requirement may change in the near future, however.
In Ontario, there have been several class action lawsuits dealing with alleged non-payment of overtime pay by (large scale) employers, leading to very significant out-of-Court settlements or damage awards against employers. For example:
Fulawka v Bank of Nova Scotia, 2016 ONSC 1576 (CanLII)
Rosen v BMO Nesbitt Burns Inc., 2016 ONSC 4752 (CanLII)
Eklund v. Goodlife Fitness Centres Inc., 2018 ONSC 4146 (CanLII)
Aps v. Flight Centre Travel Group (Canada) Inc., Court File No.: CV-19-00614755-00CP (recently initiated; unresolved)
EMPLOYERS – PROTECT YOURSELVES:
Therefore, employers who do not take adequate precautions may be exposed to claims by non-exempt employees for unpaid overtime pay. To minimize this risk, employers should:
ensure they have an adequate system to track, monitor and compensate employees for actual hours worked;
classify properly all employees (i.e., exempt, non-exempt, managerial, supervisory), including to avoid potential retroactive exposure;
effectively monitor, track and record the hours worked by non-exempt employees, particularly overtime hours;
develop tracking systems, or use a third party service provider experienced in this area;
require that overtime be approved before it is worked;
ensure they have a clear procedure for approving overtime before it is worked and that this is properly recorded at the time
implement a clearly-written workplace policy for overtime pay, specifying clearly, for example, that: overtime must be pre-approved; when and for what purpose overtime may be worked; and who is authorized to approve overtime; and
negotiate with employees to enter averaging agreements, rather than attempt to unilaterally impose those on the employees, particularly at the time of hiring.
It unclear how far back a non-exempt employee could claim for unpaid overtime pay. The prevailing wisdom appears to be the standard two-year limitation period in Ontario, but that has yet to be tested fully by the Courts for every case.
Need an effective workplace overtime policy?
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Increasingly maligned victims on social media resort to the Court for redress. The Court is becoming more intolerant of defamatory conduct online, to the extent that significant damages may be ordered against the traducing party. No longer does the Internet shield against vilifying another online.
There have been several notable cases.
For example, fairly recently a B.C. Judge awarded over $65,000 in damages against a woman for publishing untrue and unsubstantiated statements and accusations on Facebook about her neighbor, suggesting him to be a pedophile, including that he placed mirrors and cameras in his backyard to spy on her children.
It appears the case initially erupted as a neighbor dispute regarding a fish pond and backyard waterfall. The municipality was eventually involved, too, but could not effectively assist the neighbor.
The Court held that her “viral” social media posts were “venting” and “completely false and unjustified” and negatively impacted her neighbor and his career as a teacher. The woman removed her Facebook comments, after the neighbor demanded she do so, within about twenty-four hours, but the damage had already been done. For example, someone in the community had contacted the Principal of the neighbour’s school expressing concerns about him, after reading the Facebook statements.
Amongst other criticism of her, the Court said: “The seriousness of Ms. Van Nes’s defamatory Facebook post, her replies, and the comments of her ‘friends’ cannot be overstated,” and “An accusation of pedophilic behaviour must be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity.”
“He now faces the challenge of repairing the damage Ms. Van Nes has caused, if that is even possible at this point”, the Court concluded.
The vilifying party was ordered to pay to her neighbor $50,000 in general damages, $15,000 in punitive damages and $2,500 for nuisance. She was also ordered to pay a hefty part of his legal expenses. Lastly, and for good measure, presumably, she was ordered to turn off the waterfall in her backyard pond every night between 10 p.m. and 7 a.m.
More recently, Ontario’s Court of Appeal awarded $700,000 in an online defamation case involving a targeted and malicious online campaign involving business partners. The Court, noting the immediacy, permanency and “pernicious effects” of Internet defamation, held the business partner’s online posts were “unrelenting, insidious and reprehensible” over a “lengthy period”. Despite that the targeted business partner testified that he was unaware of any specific injury to his reputation in the community, significant damages were ordered. The Court’s decision highlights that a dollar amount cannot readily be ascribed to a person’s reputation.
Furthermore, the damages were awarded against another person, who was held to have participated in the business partner’s general plan and facilitated this behavior, even though he was not directly involved. Accordingly, a person need not directly participate in the online defamation, but be exposed to joint and several liability for that tortious conduct.
Misguided users of social media should certainly not assume they are protected from liability if they defame another, just as if they had done so by any other means.
Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)
Rutman v. Rabinowitz, 2018 ONCA 80 (CanLII)
An employee who resigns, verbally or in writing, may ask to ‘take back’ his or her resignation. This creates an issue for the employer, of course, particularly if the resignation is a welcomed outcome to the relationship. Ontario law says that an employer may be obliged to allow an employee to withdraw or retract a resignation depending on the circumstances.
Below are the key considerations for when an employee resigns and whether that employee will be held to be bound by his or her own act:
Is the Resignation Valid (At Law)?
Firstly, the Court will consider if the resignation is properly given and valid.
Generally, when considering whether a resignation is validly made by an employee, the Court will consider whether, in all of the circumstances and the context in which it is given, would a reasonable person have objectively concluded at the time that the employee both intended and meant to resign? In other words, the legal test is, effectively, whether the employee really meant to resign in all of the circumstances.
To be valid, a resignation must be clear, unambiguous and not shrouded in complaints, concerns or conditions by the employee. Preferably resignations will be in writing, but they can also be established by conduct of the employee clearly demonstrating intent to quit or resign at the time. For example, the employee may verbally quit, then immediately leave the workplace taking his or her personal belongings, or otherwise demonstrating intent to leave and not return.
So, is it a clear and unambiguous resignation? If given verbally, this may be problematic, of course. If it is in writing, does it clearly verify the employee is resigning, without also suggesting he or she is doing so because of mistreatment, pressure, stress or related in any way to alleged discrimination or breach of a protected ground under the Ontario Human Rights Code, for example?
If the resignation could potentially be considered by a third party, objectively, as merely expressing dissatisfaction, or as merely a threat to resign or an offer to resign if asked to do so, it may not qualify or be enough to be held as a valid resignation. If it is truly an offer to resign only, it could be revoked by the employee at law, even if it is accepted by the employer. Therefore, the resignation must be straightforward, clear, not subject to any conditions and not ostensibly embroiled with or attached to complaints or concerns by the employee at the time.
What’s more, if there is evidence of a ‘heat-of-the-moment’, reactionary decision, or of duress or other emotionally charged decision-making at the time, the Court may not hold the employee to the resignation.
Timing can also be a key factor. If the employee resigns, particularly in emotional or ‘heat-of-the-moment’ circumstances, but reasonably soon afterwards attempts to withdraw that decision, the Court is more likely to find the resignation invalid. Generally, the longer the time period between the resignation and the withdrawal, the more likely it will be that the Court upholds the initial resignation.
Should the Employer Respond to the Resignation?
Employers’ responses to resignations can be important.
If the employer believes the resignation is valid, or potentially valid, employers should provide the resigning employee with a written acceptance of the resignation. If an employer takes other steps, such as suggesting a meeting be arranged, or contacting the employee afterwards about the resignation or work-related discussions, they may be found by the Court to have engaged in conduct inconsistent with an acceptance of the resignation (i.e., potentially to encourage the employee to return to work, for example), which may invalidate an otherwise valid resignation on its face, particularly if the employee attempts to withdraw or retract the initial resignation.
Employers should also consider, before accepting the resignation in writing, if there are any circumstances or factors known to the employer that potentially could have influenced or caused the employee to resign, particularly related to the employee’s mental health, family circumstances, other sources of pressure in his or her life, or other circumstances that may have created unusual or undue stress or turmoil in the employee’s life. If so, the employer may have a duty to enquire about these with the employee before accepting the resignation, or before the resignation could be considered valid and final by the employer. If any of these factors may exist, the employer may need to consider offering assistance to the employee, such as a temporary absence from work, EAP benefits, if available, or other support services available in the workplace.
In 2014, the Supreme Court of Canada established the duty of good faith in contractual dealings and created a new general duty of honesty in contractual performance. That decision has found its way into employment law, too. As a result, the Court in Ontario will likely require employers to provide an employee with a “cooling-off period” to reconsider the employee’s resignation decision. Therefore, it is likely advisable for employers to offer this ‘cooling-off’ period and, if they do not, they may find themselves facing an additional claim for failure to abide by this new duty of honesty and good faith in performing employment arrangements.
However, cooling-off periods can be advantageous to employers, too.
For example, if an employee gives an ultimatum that the employee will resign if his or her conditions are not accepted by the employer, the employer should consider establishing a ‘cooling-off’ period, in writing, in response. If, after that period, the employee does not withdraw the ultimatum, it is more likely that the employer, if a written acceptance of the resignation is given to the employee at that expiry of the cooling-off period, will be able to establish that the employee validly resigned. If the ultimatum was clear and unambiguous and a sufficiently reasonable cooling-off period was given the employee, the employer is more likely to be successful in defending off a wrongful termination claim by the employee by establishing that a valid resignation was given and accepted.
Requirement to Accept a Withdrawal:
Generally, if the employee merely offers to resign, or if a resignation is not valid, employers should allow the employee to withdraw the offer (or invalid resignation), if the employee requests to do so reasonably soon afterwards, even if it was accepted by the employer when initially given.
If, however, the employer could demonstrate that they relied on the invalid resignation to their detriment, they may be able to successfully establish that they had no obligation to allow the employee to retract or rescind. For example, if the employer already hired a replacement, incurring time and expense to do so, the employer may be able to establish detrimental reliance sufficient to refuse the employee to rescind the resignation.
Five Best Practice Tips for Employers:
Employers should consider:
1. giving a ‘cooling-off’ period to an employee who resigns, or purports to resign, especially if there may be special circumstances, such as potential mental health-related issues, family issues or other potential sources of undue stress or pressure affecting the employee at the time;
2. requesting that resignations be given only in writing, if possible;
3. respond to resignations (in writing, ideally) with written acceptances, but only after considering if any special factors exist or may be known by the employer that potentially may have unduly influenced the employee’s decision to resign (including potential mental health-related issues);
4. avoiding any steps after receiving the resignation that may be viewed as non-acceptance of the resignation, like calling a meeting or telephoning the employee afterwards (or engaging in any verbal discussions with the employee); and
5. allowing an employee, if requested, to withdraw or retract a resignation, subject to further considering: a) the time that passed between the resignation and request to retract; b) any special circumstances regarding the employee; c) whether ‘detrimental reliance’ steps were already undertaken by the employer; and d) whether the resignation was accepted in writing previously.
Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.
The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.
Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:
· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;
· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;
· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and
· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.
Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.
So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.
If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.
Need an effective workplace policy for smoking, vaping and cannabis use?
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Ontario’s Occupational Health and Safety Act imposes important obligations on employers regarding workplace (sexual) harassment. They are designed to enforce proactive measures for all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.
Employers in Ontario must:
- make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
- incorporate the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:
(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; and/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.
- establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
- take care to ensure the Program complies with the law, including:
- measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);
- alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;
- explain fully how incidents or complaints of workplace harassment will be investigated and addressed;
- explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;
- explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and
- affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;
- train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;
- tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
- investigate all incidents and complaints of workplace harassment (fairly and completely);
- retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
- only utilize an investigator who is, and who will be perceived as, competent and impartial;
- make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
- be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external.
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HARD LABOUR – BY JASON WARD AND WARDS LAWYERSPC
REFERENCES BY FORMER EMPLOYERS – THEY CAN BE HONEST:
Employers may be wary of giving references for current or former employees, particularly if they were dismissed by the employer. There is no legal obligation for an employer to give an employment reference, unless there is an agreement to do so.
However, there are cases in Ontario whereby disgruntled, former employees have sued former employers for defamation, alleging the employers’ negative reference was defamatory and caused, or contributed to, their inability to secure alternative employer.
However, it is now clear that employers’ references, even if negative, are protected from liability for defamation, provided they are made “without malice”. This applies to both current and former employees.
As a result, employers can now feel more assured if, in the circumstances, a less-than-positive reference is given. Many employers desire to be honest, but have been nervous about informing a potentially successor employer about a candidate’s character, work performance, lack of motivation or other sub-standard characteristics.
In defamation law, the truth shall set you free – this has always been the law in Ontario. Now, in addition to the truth defence, employer references are protected by the defence of “qualified privilege”, provided the employer does not act maliciously, but rather honestly, even if the reference may not be proved as the truth.
Generally, malice need not be proven directly, but can be inferred based on the specific words of the referee employer. It may also be established by evidence about the employer’s alternative, or even ulterior, motivation, if any. In addition, comments that are made without care or proper regard to their truth may also disqualify the “qualified privileged” defence.
So, while employers need to be smart and cautious, they can express honestly-held opinions about an employee and be protected by law, conditional on not acting maliciously.
To be vigilant against the risk of claims of malice when employment references are given, a few tips to employers:
- make your comments in a professional, respectful manner;
- use balanced, moderate language and tone;
- attempt to justify any negative comments by reference to a document, or based on the referee’s first-hand experience with the employee;
- take a balanced approach – mention any positive aspects of the employee, too, if possible;
- take notes after the exercise to record, as precisely as possible, what specifically was communicated to the potential employer; and
- be mindful of any contextual issues or historical circumstances regarding the employee that could potentially be construed to suggest that the referee employer, or another person associated with the referee employer, may be motivated by revenge, a desire to punish the employer or otherwise act in a manner intended to cause harm to the employee.
Given this new development, employers should feel more comfortable with offering employment references, rather than avoiding them simply to avoid potential liability. If everyone did that, it may entirely make unavailable an important, useful part of the hiring and recruitment process, which serves no one’s interests.
Kanak v. Riggin, 2017 ONSC 2837 (CanLII), 2018 ONCA 345 (CanLII) and Tracey Kanack v. Darryl Riggin, 2019 CanLII 1628 (SCC) (leave to appeal denied).
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Date of Blog: February 26, 2019
Thank you for reading this - Jason Ward of WARDS LAWYERSPC.
If you would like to read more, please visit www.wardlegal.ca/blogs.
This WARDS LAWYERSPC publication is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
© WARDS LAWYERSPC (2019)