Category: Employment Law For Employers

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Employment Law For Employers

Protecting Your Business When a Former Employee Joins a Competitor

When an employee leaves for a competitor, employers may worry about client relationships, confidential information, pricing strategies, referral networks, trade secrets, and whether knowledge gained during employment is being used to benefit a new workplace.

Not every competitive move is unlawful. Employees are generally permitted to change jobs and continue working in the same industry. Litigation may become relevant, however, where there are concerns about confidential information, restrictive covenants, solicitation, fiduciary duties, or unfair competitive conduct.

For Windsor-Essex employers operating in closely connected industries, a departure may require a timely review of the employee’s obligations, conduct, and potential impact on the business.

Competition Alone Is Usually Not Enough

The fact that a former employee joins a competitor does not automatically create a legal claim. Ontario employment law generally balances an employer’s ability to protect legitimate business interests with an employee’s ability to earn a living.

The central question is not simply whether the employee is competing. It is whether the competition involves a breach of a contractual, legal, or equitable obligation.

Examples may include taking confidential records, soliciting restricted clients, recruiting former co-workers contrary to a contract, diverting business opportunities, or using proprietary pricing information.

Reviewing the Employment Agreement

One of the first steps is reviewing the former employee’s contract. Employment agreements may contain confidentiality clauses, non-solicitation provisions, intellectual property terms, return-of-property requirements, and post-employment restrictions.

Ontario’s Employment Standards Act, 2000 generally prohibits non-compete agreements entered into on or after October 25, 2021, subject to limited exceptions involving certain executives and sale-of-business arrangements. While the amendment does not automatically void non-competes signed before this date, Ontario courts have historically only enforced them in highly specific circumstances.

Other protections may still apply. Non-solicitation clauses, confidentiality obligations, fiduciary duties, and breach of confidence claims can remain relevant. Their enforceability often depends on whether the language is clear, reasonable, and directed at protecting a legitimate business interest.

Non-Solicitation and Client Relationships

A non-solicitation clause may restrict a former employee from actively approaching clients, customers, suppliers, referral sources, or employees for a defined period. Litigation may arise where evidence suggests the employee contacted clients shortly after leaving, encouraged them to transfer their business, used internal client lists, or coordinated account transitions before resigning.

Evidence may include emails, CRM records, phone logs, access histories, client communications, and changes in business patterns. Courts may distinguish between active solicitation and a client independently choosing to follow the employee.

Confidential Information and Trade Secrets

Confidential information claims can be central to post-departure litigation. Protected information may include pricing models, customer lists, supplier terms, financial data, marketing plans, technical processes, tender documents, or internal communications.

Not all workplace knowledge is confidential. Employees may carry general skills, experience, professional relationships, and industry knowledge into future employment. Litigation is more likely to focus on information that is private, commercially sensitive, specific to the employer, and not generally available.

Concerns may arise where documents were downloaded, copied to a USB drive, sent to a personal account, accessed unusually close to resignation, or later used in dealings with clients or prospects.

Fiduciary Duties and Senior Employees

Some senior or highly trusted employees may owe fiduciary duties because of their authority, discretion, client influence, or control over an area of the business. A fiduciary employee may face restrictions beyond those applying to an ordinary employee. Potential concerns include secretly competing while still employed, diverting opportunities, soliciting clients before departure, recruiting employees for a competing venture, or using their position to obtain an unfair advantage.

Whether fiduciary duties exist depends on the employee’s actual responsibilities and influence, not merely their job title.

Pre-Departure Conduct

Post-departure litigation often turns on what happened before the employee resigned. Employees may generally make reasonable plans for future employment. Problems can arise when planning becomes active competition, misuse of company resources, concealment of conflicts, or diversion of opportunities.

Examples may include preparing a competing bid with employer information, encouraging clients to delay decisions until after the employee leaves, copying confidential files, or coordinating competitive activity during working hours.

A clear chronology can help establish when the employee accepted the new role, what information was accessed, which clients were contacted, and whether business shifted around the time of departure.

Demand Letters and Early Intervention

Before beginning litigation, an employer may send a demand letter to the former employee and, in some circumstances, the new employer.

The letter may request the return or deletion of company information, preservation of records, confirmation that confidential information has not been used, or an undertaking not to solicit restricted clients.

A focused demand letter may resolve the issue and create a record of the employer’s efforts to protect its interests. Overly broad demands or unsupported allegations, however, may create additional risk, particularly where they effectively prevent lawful employment.

Injunctions and Urgent Court Relief

An employer may consider seeking an injunction where immediate court intervention is necessary to prevent continuing harm. An injunction may be requested to stop solicitation, prevent misuse of information, require the return of records, or preserve the status quo while the dispute proceeds.

Courts generally consider whether there is a serious issue to be tried, whether irreparable harm may occur, and whether the balance of convenience favours the requested order.

Timing can be critical. Delay may weaken the argument that urgent relief is necessary. Employers seeking an injunction may need to act quickly, preserve evidence, and present a focused record of the anticipated harm.

Claims Against the New Employer

Litigation may sometimes involve the competitor that hired the employee. A claim may be considered where the new employer allegedly encouraged a contractual breach, knowingly used confidential information, participated in unlawful solicitation, or received improperly taken materials.

Hiring an employee from a competitor is not automatically improper. The issue is whether the new employer participated in conduct that crossed a legal boundary. Potential remedies may include injunctions, disclosure orders, damages, or orders concerning confidential information.

Preserving Evidence and Investigating Concerns

Evidence preservation is often essential. Employers may need to secure company devices, preserve email accounts, suspend automatic deletion settings, retain access logs, and protect CRM data from being overwritten.

An internal review may examine whether the employee exported information, forwarded documents, deleted records, accessed unusual files, or communicated with clients in a concerning manner. Relevant contracts, policies, exit materials, and property-return records should also be reviewed.

Investigations should remain proportionate, documented, and focused on legitimate business concerns to avoid creating privacy, workplace, or evidentiary issues.

Potential Remedies

Available remedies depend on the claims and evidence. They may include injunctions, damages for lost profits, delivery or deletion of confidential information, preservation orders, declarations, and costs.

Financial losses can be difficult to prove. Employers may need evidence linking the former employee’s conduct to lost clients, contracts, revenue, or other measurable harm. The fact that business moved to a competitor may not be enough without evidence of actionable conduct.

In some disputes, stopping the misuse of information or protecting client relationships may be more important than obtaining monetary compensation.

Reducing Risk Before an Employee Leaves

Post-departure disputes may be easier to manage when protections are established in advance. Employers may benefit from regularly reviewing employment agreements, confidentiality provisions, access permissions, client protocols, remote-work policies, and onboarding and offboarding procedures.

During an employee’s departure, the employer may recover company property, disable access promptly, remind the employee of continuing obligations, and document concerns identified during the transition.

For businesses operating within connected commercial networks, clear contracts and consistent procedures may reduce uncertainty when employees move among competitors, manufacturers, suppliers, dealerships, and professional services firms.

A Measured Response Can Make a Difference

The strongest post-departure claims are generally supported by clear obligations, focused evidence, and identifiable business harm. A former employee’s decision to work for a competitor, without more, will not usually justify litigation.

Reviewing the agreement, preserving evidence, assessing urgency, and identifying practical objectives can help an employer determine whether a demand letter, injunction, lawsuit, or negotiated resolution may be appropriate.

Willis Business Law: Experienced Employment Litigation Services in Windsor-Essex County

Willis Business Law advises employers in Windsor, Essex County, Tecumseh, Lakeshore, LaSalle, Amherstburg, Leamington, Kingsville, and surrounding communities with reviewing post-departure obligations. When disputes arise, our litigation team, led by Nour Jomaa, assesses available litigation options and responds to competitive threats. Contact us online or call (519) 945-5470 to discuss protecting business interests after an employee leaves for a competitor.

Categories
Employment Law For Employers Workplace Policies

Top 8 Things Ontario Employers Need to Know About AODA Compliance

The Accessibility for Ontarians with Disabilities Act (AODA) is one of the most significant pieces of accessibility legislation in Canada. The law was designed to identify, remove, and prevent barriers faced by people with disabilities in Ontario. Its ultimate goal is to make the province fully accessible by 2025.

For employers, the AODA imposes a range of obligations regarding workplace accessibility, policies, training, and accommodations. These requirements apply to many businesses across Ontario, including private-sector employers of various sizes.

Although accessibility compliance is often discussed in broad terms, many employers remain unsure about what the AODA actually requires and how those obligations affect their day-to-day operations. Non-compliance can lead to regulatory penalties, reputational harm, and potential legal exposure.

1. The AODA Applies to Most Ontario Employers

Many employers are surprised to learn that the AODA applies to the vast majority of organizations operating in Ontario. The legislation applies not only to public sector institutions but also to private-sector businesses, non-profit organizations, and other employers that provide goods, services, or facilities to the public or employ workers in the province.

In general:

  • Businesses with one or more employees must comply with accessibility standards; and
  • Additional requirements apply to organizations with 20 or more employees.

Even small businesses with only a few employees may be subject to accessibility obligations under the legislation. Employers should ensure they understand which requirements apply to their organization based on workforce size.

2. The Integrated Accessibility Standards Regulation (IASR) Governs Employment Accessibility

Many of the workplace obligations under the AODA arise from the Integrated Accessibility Standards Regulation (IASR).

The IASR establishes accessibility standards in several key areas, including:

  • Employment;
  • Information and communications;
  • Transportation; and
  • Design of public spaces.

For most employers, the employment standard under the IASR is the most relevant. It sets out rules relating to recruitment, workplace accommodations, accessible information, return-to-work processes, and performance management practices. These requirements are intended to ensure that employees with disabilities have equitable access to employment opportunities and workplace participation.

3. Employers Must Provide Accessibility Training

One of the foundational obligations under the AODA is accessibility training. Ontario employers must ensure that employees receive training on accessibility standards and on the requirements of the Ontario Human Rights Code as they relate to individuals with disabilities.

Training must be provided to:

  • Employees;
  • Volunteers;
  • Individuals who participate in developing organizational policies; and
  • Anyone providing goods, services, or facilities on behalf of the organization.

The training should be appropriate to the duties of the individuals receiving it. For example, managers or HR personnel may require more detailed training about accommodation obligations. Employers must also keep records of accessibility training if their organization has 20 or more employees.

4. Workplace Accessibility Policies May Be Required

Employers covered by the AODA are generally required to develop accessibility policies that outline their commitment to accessibility and the steps they take to remove barriers.

Organizations with 20 or more employees must prepare these policies in writing and make them available to the public upon request. Accessibility policies typically address matters such as:

  • Organizational commitments to accessibility;
  • Procedures for accommodating employees with disabilities; and
  • Accessibility in hiring and workplace practices.

Maintaining clear policies helps demonstrate compliance and provides guidance for managers and employees when accessibility issues arise.

5. Recruitment and Hiring Practices Must Be Accessible

The AODA requires employers to ensure that accessibility is considered throughout the hiring process. Employers must notify job applicants that accommodations are available for applicants with disabilities during recruitment.

This notification often appears in job postings or recruitment materials. For example, many employers include statements advising applicants that accommodation is available upon request.

When candidates request accommodation during the hiring process, employers must take reasonable steps to provide appropriate accommodations unless doing so would cause undue hardship. Employers must also inform successful applicants of their accessibility policies when making offers of employment.

6. Employers Must Provide Workplace Accommodation for Employees with Disabilities

Workplace accommodation is one of the most important aspects of AODA compliance. Under both the AODA and the Ontario Human Rights Code, employers must accommodate employees with disabilities to the point of undue hardship.

Accommodation may take many forms depending on the circumstances. Examples may include:

  • Modified job duties;
  • Adjusted work schedules;
  • Assistive technology;
  • Physical workplace modifications; and
  • Flexible work arrangements.

Employers must also develop individualized accommodation plans for employees with disabilities when appropriate. These plans should document the employee’s needs, the accommodations provided, and the process for reviewing or updating accommodations.

Handling accommodation requests carefully and consistently is essential to maintaining compliance with accessibility and human rights legislation.

7. Accessible Return-to-Work Processes Are Required

The AODA requires employers to implement return-to-work processes for employees who have been absent from work due to disability. These processes must outline how employees will be supported when returning to work following disability-related leave.

The return-to-work process should address issues such as:

  • Assessment of accommodation needs;
  • Development of individualized accommodation plans; and
  • Coordination with other workplace policies or disability management programs.

The purpose of these requirements is to ensure that employees who experience disability-related absences are supported during their reintegration into the workplace.

8. Employers May Need to File Accessibility Compliance Reports

Organizations with 20 or more employees are generally required to file periodic accessibility compliance reports with the Government of Ontario. These reports confirm that the organization has met its obligations under the AODA and the Integrated Accessibility Standards Regulation.

Failure to file required reports can result in enforcement action, including administrative penalties. Employers should ensure that reporting deadlines are tracked and that internal policies and procedures support ongoing compliance with accessibility requirements.

AODA Compliance Is an Ongoing Responsibility

Accessibility compliance is not a one-time task. The AODA establishes ongoing obligations that employers must continue to meet as their businesses evolve. As organizations grow, change hiring practices, introduce new technologies, or expand their workforce, accessibility considerations may need to be revisited.

Employers should regularly review their policies, training programs, and accommodation processes to ensure they remain compliant with Ontario accessibility laws.

Maintaining accessible workplaces not only helps organizations meet legal obligations but also promotes inclusion, employee engagement, and equitable employment opportunities.

Willis Business Law: Advising Windsor-Essex Employers on AODA Compliance

Employers in Ontario must comply with accessibility requirements under the Accessibility for Ontarians with Disabilities Act (AODA) and the Integrated Accessibility Standards Regulation. These obligations affect workplace policies, hiring practices, accommodation procedures, and accessibility training requirements.

At Willis Business Law, our Windsor-Essex employment lawyers advise employers on workplace compliance, employment policies, and regulatory obligations. We help organizations understand their responsibilities under Ontario employment laws and develop practical strategies for maintaining compliant and inclusive workplaces. To discuss your business’ AODA duties, please contact us online or call (519) 945-5470.

Categories
Employment Law For Employers Workplace Harassment

Not Every Workplace Dispute Belongs in Court: Federal Employee’s Harassment Claim Barred

Workplace disputes often involve deeply personal allegations, including harassment, discrimination, and unfair treatment. Employees may understandably feel that civil litigation is the appropriate forum to seek accountability and compensation. However, for many employment relationships in Ontario, particularly unionized environments, the courts are not the correct venue for resolving these disputes.

The Ontario Superior Court of Justice’s recent decision in Mittal v. Department of National Defence provides a detailed reminder of how and why employment-related claims can be barred from civil court proceedings. While the case arises from a federal employment context, its reasoning offers essential lessons for Ontario employers about jurisdiction, pleadings discipline, and the limits of creative litigation strategies.

Employee Sued Department of National Defence for Harassment and Negligence

The employee was employed as a civilian cook at the Royal Military College in Kingston, Ontario. His employment was governed by a collective agreement, and he was a member of a union representing federal public service employees. Over several years, he alleged that he experienced harassment, discrimination, and unfair treatment in the workplace.

The dispute escalated significantly after a workplace altercation in 2021, following which criminal charges were laid against the employee by the Military Police. Those charges were later withdrawn. The employee subsequently commenced a civil action seeking substantial damages, alleging workplace harassment and negligence, and later advanced arguments consistent with malicious prosecution.

Rather than delivering a statement of defence, the employer brought an early motion seeking to strike the claim in its entirety.

The Central Legal Question: Who Has Jurisdiction?

At the heart of the decision was whether the Ontario Superior Court even had jurisdiction to hear the employee’s claims. The defendants argued that the claims were barred by section 236 of the Federal Public Sector Labour Relations Act (“FPSLRA”), which provides that an employee’s right to grieve workplace disputes replaces any civil right of action arising from those same facts.

The court agreed. While the FPSLRA applies specifically to federal public service employees, its structure mirrors the logic behind Ontario’s own labour relations framework. In both systems, legislatures have created specialized dispute-resolution mechanisms—grievance procedures, arbitration, and labour adjudication—to address employment-related conflicts.

The court emphasized that this jurisdictional bar applies regardless of whether an employee actually pursues a grievance. The existence of the grievance process alone is sufficient to displace the civil courts.

Employee Attempted to Preserve Negligence Claim

The employee conceded that his workplace harassment claims fell squarely within the grievance process and could not proceed in court. However, he attempted to preserve a negligence claim, arguing that the employer owed him a duty of care separate from the employment relationship.

The court rejected this argument. After reviewing the pleadings, the court concluded that the negligence allegations were inseparable from the conditions of employment. Claims about fairness, supervisory conduct, workplace investigations, and employer responses to complaints are fundamentally employment matters. As such, they fall within the exclusive jurisdiction of the grievance regime.

For Ontario employers, this reinforces a critical principle: courts will look at the essential character of a claim, not how it is labelled. Rebranding workplace allegations as negligence does not create a civil cause of action where the legislature has removed one.

Attempting to Reframe the Claim as Malicious Prosecution

In the face of dismissal of his harassment and negligence claims, the employee attempted to rely on allegations consistent with malicious prosecution. He argued that false reports by colleagues led to criminal charges being laid against him, which were later withdrawn.

The court undertook a careful analysis of whether the statement of claim properly pleaded the elements of malicious prosecution. While acknowledging that malicious prosecution is a recognized tort, the court found that the pleadings fell well short of what is required.

The High Bar for Malicious Prosecution Claims

Malicious prosecution is notoriously difficult to prove. A plaintiff must establish four distinct elements:

  1. The defendant initiated the proceedings;
  2. The proceedings terminated in the plaintiff’s favour;
  3. There was no reasonable and probable cause for the proceedings; and
  4. The defendant acted with malice or an improper purpose.

While the statement of claim arguably addressed the first two elements, the court found that it failed entirely on the third and fourth.

Allegations that investigators failed to conduct a “fulsome investigation” do not establish an absence of reasonable and probable cause. Nor do they demonstrate malice. The court emphasized that poor investigations, even if negligent, are not synonymous with malicious intent.

Crucially, the plaintiff attempted to attribute alleged malice by individual co-workers to the Military Police. The court rejected this approach, noting that malice cannot be imputed in this way without specific factual allegations supporting such an inference.

Pleading Requirements Matter

Beyond the substantive deficiencies, the court highlighted the importance of proper pleading standards. Where malice is alleged, Ontario’s Rules of Civil Procedure require full particulars. Vague assertions and general narratives of unfairness are insufficient.

The court concluded that the malicious prosecution claim had no reasonable prospect of success and struck it without leave to amend. This effectively ended the lawsuit.

For employers, this aspect of the decision underscores the value of early procedural motions. Weakly pleaded claims, particularly those attempting to stretch tort law into the employment context, can and should be challenged at the outset.

Why Leave to Amend Was Denied

Courts are generally reluctant to deny plaintiffs the opportunity to amend defective pleadings. However, this case fell into what the court described as “the clearest of cases” where amendment would serve no useful purpose.

The plaintiff’s original claims were fundamentally employment disputes. Allowing him to recast those same allegations into a tort claim would undermine the statutory scheme governing labour relations.

This reinforces a vital takeaway: where the core dispute is jurisdictionally barred, an amendment cannot cure the problem.

The Importance of Understanding Employment/Labour Jurisdictional Distinctions

Although this case arises from a federal employment relationship, its lessons apply broadly across Ontario workplaces.

  1. Statutory grievance regimes matter. Whether under federal legislation or Ontario’s labour relations framework, courts will respect legislative intent to channel employment disputes away from civil litigation.
  2. The substance of a claim matters more than its label. Employers should look past creative pleadings and assess whether allegations truly fall outside the employment relationship.
  3. Malicious prosecution and similar torts are not easy workarounds. Courts will require strict compliance with pleading standards and compelling factual foundations before allowing such claims to proceed.
  4. Early procedural motions can be highly effective. Addressing jurisdiction and pleading deficiencies at the outset can prevent years of unnecessary litigation and expense.

Why This Decision Is Particularly Relevant in Windsor–Essex County

Windsor–Essex County has a significant unionized workforce across manufacturing, public sector, healthcare, and education. Employers in this region frequently operate within collective bargaining frameworks that include grievance and arbitration mechanisms.

This decision serves as a reminder that those mechanisms are not optional, and that courts will not entertain parallel civil proceedings simply because an employee is dissatisfied with internal processes.

Understanding where disputes belong and responding strategically when claims are misdirected is an essential part of risk management for employers in the region.

Willis Business Law Offers Multifaceted Employment & Labour Law Support to Windsor-Essex Employers

Workplace disputes can escalate quickly, and choosing the wrong forum can be costly. If you are an employer in Windsor-Essex County facing a grievance, harassment complaint, or threatened civil claim, experienced legal guidance can help you respond strategically and protect your organization.

The labour and employment law team at Willis Business Law advises employers on jurisdictional issues, grievance management, and risk mitigation at every stage of a workplace dispute. From the heart of downtown Windsor, we proudly serve clients throughout the surrounding areas, including Amherstburg, Essex, Kingsville, Lakeshore, LaSalle, Leamington, Pelee Island, Tecumseh, Chatham-Kent, and Sarnia. To book a consultation, please contact us online or call 519-945-5470.

Categories
Employment Law For Employers

Ontario Pay Transparency Rules in 2026: A Practical Compliance Guide for Windsor-Essex Employers

Ontario employers are entering a new era of “pay transparency” in recruitment. Beginning January 1, 2026, many organizations will be legally required to include compensation information in publicly advertised job postings, along with several other hiring-process disclosures and restrictions.

These changes arrive in a labour market that is already competitive and influenced by cross-border factors. Whether you hire for manufacturing and skilled trades, logistics, healthcare, agriculture, professional services, or tech, job postings are often the first (and sometimes only) touchpoint a candidate has with your organization. The new rules raise the stakes: job postings will need to be more standardized, more accurate, and better aligned with your internal compensation practices.

What Counts as a “Publicly Advertised Job Posting”?

The new rules target publicly advertised job postings, generally described as external postings advertised to the general public (for example, on job boards, public-facing career pages, or social media).

Some exclusions include general recruitment campaigns that don’t reference a specific position, internal-only postings, and certain postings for work performed outside Ontario.

From a practical standpoint, if the posting is visible to the general public and invites external applicants for a specific role, you should treat it as caught by the rules unless you have a clear basis to rely on an exclusion.

The 25-Employee Threshold

The new requirements apply to Ontario employers with 25 or more employees (based on the day the publicly advertised job posting is posted). Employers under this threshold are generally not subject to the new job-posting rules.

For some organizations, especially growing manufacturers, multi-location retailers, hospitality groups, and professional practices, this threshold may be met seasonally or fluctuate from year to year. If your business stays near 25 employees, the risk is not just whether you are covered in a general sense, but whether you are covered on the day a specific posting goes live.

A prudent approach is to assume coverage if you regularly operate at or near 25 employees, and implement compliant posting templates as your default.

Compensation Disclosure: What Must Be Included

Starting January 1, 2026, covered employers must include either:

  • The expected compensation for the position; or
  • A range of expected compensation.

This is the “headline” pay transparency requirement. It will change how many employers approach posting design, internal approvals, and salary negotiations.

The $50,000 Range Cap

If you choose to post a range, guidance consistently describes a requirement that the range cannot exceed $50,000 (for example, $80,000–$120,000 may be acceptable; $80,000 to $140,000 would not be).

This is a critical operational detail: many employers currently post very wide ranges to preserve flexibility. In 2026, that strategy may no longer be available for covered postings.

The $200,000 Threshold (Where Disclosure May Not Be Required)

Summaries of the regulation also describe an exemption where compensation disclosure is not required for positions where expected compensation exceeds $200,000, or where the top end of a posted range would exceed $200,000.

For most employers, this exemption will primarily apply to senior leadership or specialized professional roles.

Defining “Compensation” Under the New Rules

In the context of the new pay transparency rules, “compensation” is tied to the concept of “wages” under Ontario employment standards, and is broader than base salary alone in many contexts.

The practical takeaway is that employers should avoid rushing to post a number without first confirming what they are actually committing to communicate. If you include only base salary, but the role regularly earns non-discretionary commissions or other earnings, you may need a defensible rationale for how the posted figure was determined.

Just as importantly, once a range becomes public, employees and candidates will compare it to internal realities. A compliant posting that triggers an internal pay equity issue can still become a business problem.

Vacancy Status: Avoiding “Ghost Postings”

Covered employers must include a statement disclosing whether the posting is for an existing vacancy. This requirement aims to reduce “ghost postings” and help applicants understand whether they are applying for a currently available role or if the employer is building a pipeline.

For legitimate reasons, many employers build candidate pools (for example, to address ongoing needs in skilled trades, seasonal roles, or growth planning). In 2026, you can still recruit strategically, but you will need to be transparent about what the posting represents.

Disclosing AI Use in Screening and Selection

If you use artificial intelligence to screen, assess, or select applicants, you must disclose that fact in the publicly advertised posting.

This matters for more employers than many realize. AI use can encompass a wide range of tools, including resume-screening features within applicant tracking systems, automated ranking or scoring, and third-party screening platforms. Even if a human makes the final decision, the posting obligation may be triggered if AI is used earlier in the funnel.

A practical first step is to map your hiring workflow and identify where automation occurs, especially in vendor tools that HR teams may use as “standard features.”

No “Canadian Experience” Requirements in Postings and Application Forms

Starting in 2026, covered employers will be prohibited from including requirements related to Canadian experience (or equivalent) in publicly advertised job postings and associated application materials.

This does not mean you cannot require lawful, job-related qualifications. It does mean you should audit templates for language that can be read as excluding qualified newcomers (for example, “must have Canadian experience”).

In roles that require compliance knowledge, safety training, licensing, or familiarity with Ontario workplace norms, the best practice is to specify the real requirement:

  • Required certification or licence;
  • Specific technical competency;
  • Ability to work in Canada (where applicable); and
  • Ability to perform the essential duties safely and effectively.

Post-Interview Candidate Communications

Covered employers must notify applicants who were interviewed for a publicly advertised job posting of whether a hiring decision has been made within 45 days of the applicant’s interview (or last interview, if multiple).

This is a process rule, not just a posting rule. Employers should plan for:

  • What counts as an “interview” in your process (especially where there are screening calls, panel meetings, working interviews, or virtual meetings); and
  • Who is accountable for triggering the notification (HR, the hiring manager, or the recruiter).

A simple compliance-minded approach is to implement a standard, courteous message that confirms either: (a) a hiring decision has been made, or (b) a hiring decision has not yet been made (if that is permitted by the applicable rule interpretation). You should also keep records, as discussed below.

Retaining Posting Records

Employers must retain copies of publicly advertised job postings and associated application forms for three years after the posting is removed, along with related records of the post-interview notifications for a similar period.

This is where many employers will need to modernize their recordkeeping. If you post on multiple platforms (Indeed, LinkedIn, industry boards, community groups), you need a reliable method to capture what was actually posted and when. Screenshots, PDF exports, or platform archives can work, so long as the system is consistent and searchable.

A Windsor-Essex Employer’s Compliance Plan

Many organizations can reduce risk (and avoid last-minute scrambling) by taking certain steps now to adapt their internal processes to comply with the new pay transparency rules.

Step 1: Build Compliant Posting Templates

Prepare standardized job posting templates that include:

  • A compliant pay disclosure format (single figure or capped range);
  • A vacancy status statement;
  • An AI disclosure statement (where applicable), and
  • Language that avoids “Canadian experience” requirements.

Templates reduce the chance that a hiring manager posts a non-compliant ad under time pressure.

Step 2: Create Defensible Compensation Ranges

Pay transparency raises an internal question: Do we have accurate salary ranges for each job family, and can we clearly explain them? If you do not, you may end up posting numbers that create internal compression or employee relations issues.

A structured compensation approach can help you stay competitive without improvising on every posting.

Step 3: Audit Your Hiring Tech for AI Use

Identify whether your applicant tracking system (ATS), human resources information system (HRIS), or recruitment vendors use AI to screen, rank, or recommend candidates. If AI is used, prepare a consistent disclosure statement and ensure your HR team understands when it must appear in a posting.

Step 4: Update Interview Workflows to Meet the 45-Day Rule

Decide who owns candidate communications and build reminders into your ATS or HR calendar. Create message templates that are professional and consistent across departments.

Step 5: Implement a Three-Year Posting Archive Process

Make it easy to prove when you posted and what you posted. A lightweight approach can include:

  • Saving a PDF of the posting as published;
  • Storing any application form used; and
  • Retaining the post-interview notification record in the same file.

Contact Willis Business Law in Windsor-Essex County for Trusted Guidance on Ontario’s Pay Transparency Rules

Ontario’s 2026 pay transparency rules are manageable, but they are not “set it and forget it.” Compliant job postings rely on effective compensation design, HR policies, hiring technology, record retention, and training for hiring managers.

At Willis Business Law, our employment law team works with employers to prepare practical, defensible compliance programs, including job posting and application template updates, compensation range reviews, recruitment and interview policies, vendor contract reviews, and audit-friendly record retention practices. If you would like help preparing for these changes, please contact us online or call (519) 945-5470.

Categories
Employment Law For Employers Wrongful Dismissal Claims

Constructive Dismissal: A Primer for Ontario Employers

Constructive dismissal is one of the most complex and often misunderstood areas of employment law in Ontario. While employers may assume that dismissal only occurs when they explicitly terminate an employee’s contract, the law recognizes that certain changes to the employment relationship can amount to a termination, even without a formal dismissal. For employers, understanding the principles of constructive dismissal is critical to reducing legal exposure and maintaining a productive workplace.

What Is Constructive Dismissal?

Constructive dismissal (a form of wrongful dismissal) occurs when an employer unilaterally makes a fundamental change to an employee’s employment contract without the employee’s consent. Such a change may alter the foundation of the employment relationship, leaving the employee with a choice: accept the new terms or treat the contract as terminated and pursue damages (i.e. quit and sue).

Constructive dismissal does not require an employer to explicitly fire the employee. Instead, it arises when an employee can reasonably conclude that the employer no longer intends to be bound by the contract’s original terms. Courts analyze constructive dismissal objectively, focusing on whether the employer’s conduct substantially changed the employment bargain.

The Legal Framework for Constructive Dismissal

Canadian courts have developed a framework for determining constructive dismissal. Broadly speaking, constructive dismissal can occur in two ways:

  1. The employer makes a single, unilateral change that substantially alters an essential term of employment, such as compensation, duties, or work location.
  2. The employer’s pattern of conduct, such as persistent mistreatment or a toxic work environment, demonstrates an intention to no longer be bound by the employment agreement.

The analysis is highly fact-specific, and courts weigh not only the magnitude of the change but also the context in which it occurred.

Common Examples of Constructive Dismissal

Ontario case law has identified a variety of situations that may amount to constructive dismissal, including those set out below.

Reduced Compensation

One of the most frequent involves changes to compensation, such as salary reductions, elimination of bonuses, or significant alterations to commission structures. Even a temporary pay cut, if substantial, can give rise to a claim.

Modified Job Duties

Another common scenario is the unilateral modification of job duties. Employers have the flexibility to reorganize operations and reassign employees, but changes that fundamentally alter the role, diminish responsibilities, or result in a loss of prestige may be treated as constructive dismissal.

Workplace Relocation

Geographic relocations also pose risk. While some mobility within a reasonable distance may be permissible, requiring an employee to move to a different city or substantially lengthen their commute without contractual authority may amount to constructive dismissal.

Toxic Work Environments

Situations involving workplace harassment, bullying, or a toxic environment created or tolerated by the employer can trigger constructive dismissal on the basis that the employer has failed to uphold its duty to provide a safe and respectful workplace.

Not Every Change Is Constructive Dismissal

While the law sets boundaries, not every workplace adjustment will support a constructive dismissal claim. Courts recognize that employers must be able to adapt to business needs. Minor changes to job duties, modest adjustments to compensation, or temporary measures taken in good faith are generally insufficient to constitute constructive dismissal.

An important concept is that of implied terms. Many employment contracts implicitly allow employers to make reasonable changes to duties, schedules, or reporting structures. Courts balance this flexibility against the employee’s right to maintain the essential bargain.

Employers should also remember that employees are expected to act reasonably. A constructive dismissal claim may fail if a reasonable person would not have viewed the change as undermining the contract.

Constructive Dismissal and Resignation

One of the complexities of constructive dismissal is that the employee is not truly resigning when they leave. Instead, they are asserting that the employer’s conduct effectively forced them to depart.

However, timing matters. If an employee continues working under the new conditions for an extended period without objection, courts may interpret this as acceptance of the changes, undermining a constructive dismissal claim. Employers should be mindful that silence or acquiescence may work in their favour if a dispute arises later.

Consequences of Constructive Dismissal

If a court finds constructive dismissal, the employee is treated as if they were terminated without cause. This entitles the employee to reasonable notice of termination or pay in lieu, as determined by common law principles, unless a valid employment contract limits entitlements to statutory minimums.

Employers can face significant financial exposure. Reasonable notice under common law can exceed the Employment Standards Act (ESA) minimums and may amount to months or even years of compensation, depending on factors such as the employee’s age, length of service, position, and availability of comparable employment.

In addition to damages for reasonable notice, employers may also face claims for benefits, bonuses, stock options, and, in some cases, aggravated or punitive damages if the constructive dismissal is linked to bad faith conduct.

The Critical Role of Employment Contracts

Clear, well-drafted employment contracts are one of the most effective tools employers have to reduce constructive dismissal risk. Contracts should expressly define key terms, such as compensation, duties, reporting structure, and work location. They may also include language reserving the employer’s right to make reasonable changes to roles and responsibilities.

Termination provisions are critical. A properly drafted termination clause can limit an employee’s entitlements to the statutory minimums under the ESA, substantially reducing the damages flowing from a constructive dismissal finding. Care must be taken to ensure such clauses comply with current legal standards, as courts routinely strike down poorly worded or non-compliant provisions.

Constructive Dismissal During Economic Downturns

Economic downturns and organizational restructuring often lead employers to make difficult decisions, such as reducing compensation or reassigning duties. While business realities are relevant, they do not excuse employers from the principles of constructive dismissal.

Ontario courts have held that financial hardship does not justify unilateral, fundamental changes to employment terms. Employers facing such circumstances should pursue strategies that minimize legal risk, such as obtaining employee consent, offering temporary measures with clear timelines, or implementing reductions across the organization transparently.

Constructive Dismissal and Remote Work

The rise of remote work has created new challenges for employers. Requiring employees who have worked remotely for an extended period to return to the office may be contested as constructive dismissal if the employment contract does not clearly reserve that right.

Similarly, mandating permanent remote work for employees who prefer or were hired into an office environment may be seen as a fundamental change. As remote work arrangements become entrenched, employers must carefully consider how to manage these transitions to avoid litigation.

Defending Against Constructive Dismissal Claims

From an employer-side perspective, defending a constructive dismissal claim often involves demonstrating that the change was reasonable, permitted by contract, or not fundamental to the employment relationship. Employers may also argue that the employee accepted the change by continuing to work without objection.

Documentation is key. Employers should maintain clear records of employee communications, including written offers, policy updates, and correspondence regarding any changes to employment terms. These records can be critical in showing that changes were implemented transparently and in good faith.

Employers may also rely on evidence of industry norms, organizational restructuring, or other business justifications to demonstrate that the changes were reasonable and not intended to repudiate the contract.

Best Practices for Employers

The best way to address constructive dismissal risk is through prevention. Employers should foster a culture of transparency, fairness, and respect in employment relationships.

Before implementing significant changes, employers should consider seeking employee consent, offering incentives, or negotiating contract amendments. Engaging legal counsel early in the process can help employers design strategies that achieve business objectives while reducing legal risk.

Employers should also review and update employment contracts regularly to ensure compliance with evolving case law. Policies addressing workplace conduct, harassment, and remote work should be clearly communicated and consistently enforced.

Willis Business Law: Providing Robust Constructive Dismissal Advice to Windsor-Essex Employers

Constructive dismissal remains a complex area of Ontario employment law, carrying significant financial and reputational risks for employers. By understanding the legal principles, investing in clear employment contracts, documenting workplace decisions, and approaching changes with transparency and respect, employers can reduce their risk of litigation and maintain stronger employment relationships.

If your business is considering changes to employee roles, compensation, or workplace structure, Willis Business Law can help. Our team of skilled employment lawyers provide comprehensive, multi-faceted legal solutions that help employers implement workplace changes with confidence and compliance. To discuss your employment law matter, please call (519) 945-5470 or contact us online.

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