Category: Employment Law

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Business Law Employment Law

Protecting Business Interests: Non-Compete Agreements

In today’s fast-paced world of modern business, protecting your company’s interests is paramount. As such, many Ontario business owners and employers may look to non-compete agreements to safeguard their business and maintain a competitive advantage. While this legal tool can be effective in some cases, a non-compete agreement is not always appropriate, nor will it always be upheld by a court. Therefore, employers and business owners need to understand the legal considerations associated with non-compete agreements and other less restrictive agreements and provisions.

Whether you are a seasoned entrepreneur or a fledgling startup, this blog will provide insights to equip you with the knowledge needed to protect your business from potential threats posed by departing employees.

What Is a Non-Compete Agreement?

A non-compete agreement is a restrictive covenant, often presented as a provision in an employment contract that applies to the employee and employer. Non-compete agreements are designed to prevent former employees from using proprietary information to compete against their former company.

Each non-compete agreement is unique depending on the type of industry it applies to. Generally, non-compete agreements will contain three key elements, namely:

  • The scope and nature of the competition to prevent an employee from working with a business competitor;
  • The specific geographical location to which the non-compete applies; and
  • The duration of the non-compete agreement.

The Intentions Behind Non-Compete Agreements

Employers and business owners may seek to use non-compete agreements for various reasons, such as:

  • Protecting customer relationships by preventing an employee from taking clients or customers with them when they leave the business; and
  • Protecting trade secrets and confidential information by preventing employees from disclosing or implementing such proprietary information at a competing business.

Employers may feel pressure to retain high-level employees in today’s competitive employment market. Therefore, including a non-competition clause can strongly deter employees from leaving. However, the same clause can also be a deterrent to prospective employees during the recruitment process.

Are Non-Compete Agreements Enforceable in Ontario?

Non-compete agreements have been generally prohibited in Ontario since October 25, 2021. Section 67.1 of the Employment Standards Act provides that any agreement between an employer and employee that prevents an employee from engaging in any project, work, business, profession, occupation or other activity in competition is prohibited. The courts have found that non-compete agreements are unfair, given their negative impact on past employees’ abilities to make a living. Therefore, while an employee may have signed an employment contract containing a non-compete agreement, the validity and enforcement of such agreement can be questioned.

However, if you entered a non-compete agreement before October 25, 2021, the agreement may still be valid and enforceable.

Exceptions to the Prohibition of Non-Compete Agreements in Ontario

There are some limited exceptions to the general prohibition against non-compete agreements. For instance, a non-compete agreement with an executive employee may be permitted. Non-compete agreements relating to business sales may also be valid to prevent the seller of the business from entering into competition with the company if the seller becomes the buyer’s employee.

Alternative Methods of Protecting Your Business and Trade Secrets

While non-compete agreements are primarily prohibited, there are alternative measures that employers can take to ensure their business interests remain protected. For instance, a non-disclosure agreement prevents employees from sharing sensitive information about the business’s proprietary information and processes.

A non-solicitation agreement, on the other hand, is considered a less restrictive covenant that may also align with the employer’s legitimate business interest. This type of agreement stops a departing employee from actively pursuing clients and customers with the intention of bringing them along to their new place of employment.

Important Takeaways For Business Owners and Employers

As a business owner or employer, safeguarding the interests of your company is not only prudent but often essential for survival in today’s competitive landscape, regardless of the industry. While it may be tempting to utilize a non-compete agreement, it is crucial to understand that the courts do not uphold most non-compete agreements in Ontario. If you have entered into a non-compete agreement that is challenged by an employee, the burden of proving that the agreement is reasonable and unambiguous is on the employer seeking to enforce it.

If you have questions about non-compete agreements or want to learn more about how to protect your business, it is important to proactively consult with a trusted business and employment lawyer who can advise you of your options and help you draft a comprehensive and enforceable employment agreement.

Contact Windsor’s Trusted Lawyers at Willis Business Law for Advice on How to Protect Your Business Interests

If you are a business owner or employer who needs to protect your trade secrets, contact the skilled Windsor business and employment lawyers at Willis Business Law for comprehensive legal advice on contracts and employment agreements. Our legal team will help you strike the right balance between protecting your business interests and respecting your employees’ rights while ensuring your contract remains compliant and enforceable under the applicable laws. To learn more about how we can assist you in your business endeavour, contact us online or call us at 519-945-5470.

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Employment Law

Managing Employee Accommodation Requests in the Workplace

Across the country, employers are expected to facilitate inclusive, diverse and accessible workplaces so employees of all abilities can thrive. Central to this endeavour is the duty to accommodate employees with disabilities, ensuring they have equal opportunities for success regardless of their restrictions or limitations. However, navigating the complexities of disability accommodation requests can pose unique challenges for employers. From understanding legal obligations to fostering a culture of inclusion, there are various factors to consider.

This blog will examine the legal framework surrounding disability accommodation in Ontario and explore practical strategies to help employers fulfill their duty to accommodate effectively.

Understanding an Employer’s Duty to Accommodate

Under Ontario’s Human Rights Code, employers have a legal duty to accommodate the needs of their employees with disabilities, even if not explicitly requested by an employee. Under this duty, employers must procedurally assess the requested accommodation as well as the actual substance of the accommodation.

However, the duty to accommodate is not absolute. An employer is only required to accommodate an employee to the point of undue hardship. In other words, an employer is not required to provide an employee with an accommodation if it would incur onerous costs, health or safety risks, or result in excessive or undue difficulty.

Navigating Accommodation Requests

The accommodation process is generally a collaborative process in which the employee and the employer must cooperate, share information, and work together to identify possible accommodation solutions. Both employers and employees need to understand that the accommodation process is a two-way street, and they have a responsibility to work together to develop an accommodation plan that meets the needs of both parties.

Employers must generally accept an employee’s accommodation request in good faith and maintain employee confidentiality and privacy throughout the process. Employers are responsible for actively investigating potential accommodation solutions and engaging in regular communication with the employee regarding their requests. During discussions with the employer, the employer must keep comprehensive records of the request and any actions that have been taken. Once the parties have determined the most appropriate accommodations, the employer must implement such accommodations promptly.

It is essential to note an employee is not automatically entitled to their preferred accommodation. However, they are entitled to the most reasonable and dignified accommodation short of undue hardship to the employer.

What Is Required in the Accommodation Process?

According to the Ontario Human Rights Commission, an employee making an accommodation request must make their needs known to their employer, typically in writing, and an employer has the responsibility to inquire about accommodations that may be required. The employee must actively participate in discussions about accommodations and provide details regarding their limitations and restrictions in the workplace. The employee must also work with accommodation providers or experts to help facilitate the accommodation process.

Employers are prohibited from taking negative action against an employee who has sought an accommodation or has disclosed a disability, as this may result in being found liable for discrimination under the Human Rights Code. Therefore, it is important to seek proactive legal advice to ensure that any disciplinary action taken against an employee is not tainted by bias.

What Information Can Be Requested?

It is vital for employers to be aware that under human rights legislation, the information requested from the employee to aid the accommodation request must be as minimally intrusive as possible. To meet the duty to accommodate, an employer can request particulars from the employee regarding their medical condition to understand:

  • Whether the employee has a disability;
  • How the disability affects and restricts the employee’s ability to work; and
  • What possible accommodation solutions will be appropriate and adequate in light of the employee’s restrictions.

In some cases, a diagnosis request may be sought to clarify the initial information provided. For example, this may be required if the information provided does not demonstrate that the employee has a disability or does not set out the type of accommodations that may be required. On the other hand, the “nature” of the employee’s condition can always be requested.

Common Examples of Workplace Accommodations

Employers must foster an inclusive and diverse workplace for all employees. As such, employers may be asked to accommodate physical, mental, and developmental disabilities, injuries, and chronic medical conditions. At a high level, there are four categories of workplace accommodations, specifically:

  • Environmental supports;
  • Visual supports;
  • Language and communication supports; and
  • Structural or physical supports.

Regarding specific accommodations, some requests may be satisfied with relatively straightforward modifications, while others might require more substantial changes. Some common examples of workplace accommodations are outlined in further detail below:

  • Providing flexible or modified work schedules, including remote work when available, to allow employees to adjust their working hours to meet their medical needs, such as attending appointments or treatment.
  • Physical adjustments to a workplace or office to ensure the employee can access their workspace comfortably, which may include a wheelchair ramp, ergonomic furniture, or other structural modifications.
  • Offering assistive technology, such as voice-to-text or speech recognition, or providing materials in an alternative and accessible format, such as larger text sizes or incorporation of photos.
  • Modifying work tasks or responsibilities depending on the specific needs of the employee.

Developing and Implementing Inclusive Workplace Policies

Employers should ensure they have a comprehensive human rights, accessibility and accommodations workplace policy. The policy should address various human rights and accommodations requirements set out by human rights legislation, including:

  • The purpose of the policy;
  • The scope of the policy’s application,
  • Who is responsible for administering the policy; and
  • The requisite procedures to be followed when addressing matters involving workplace accommodations and human rights concerns.

Employers must communicate the policy particulars to all employees and ensure they can access it.

Key Takeaways for Employers Regarding Accommodation Requests

Employers must be aware of their obligation to identify and address their employees’ accommodation needs to the point of undue hardship. It is also important to ensure the workplace has a sound human rights policy outlining an accommodation request process. However, obtaining legal advice before taking specific actions or disciplinary action against an employee who has disclosed a disability can help ensure that the employer’s duties and obligations are met and risks are mitigated.

Contact the Lawyers at Willis Business Law in Windsor-Essex for Comprehensive Advice on Workplace Accommodations and Human Rights Matters

At Willis Business Law, our skilled labour and employment lawyers understand the nuances associated with workplace matters, including disability accommodation requests, workplace policies, and wrongful dismissal claims. We know that every employee and accommodation request is unique, so we work closely with our clients to ensure that they understand their obligations and options regarding workplace issues. Whether you require assistance drafting workplace policies or are facing claims of discrimination, our lawyers can help you resolve your matter and move forward. To speak with a member of our team regarding your workplace matter, reach out to us online or call us at 519-945-5470.

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Employment Law Labour Law

Ontario Court of Appeal Finds Bill 124 Violates Unionized Workers’ Charter Rights

The Ontario Government introduced Bill 124 (also known as the “Protecting a Sustainable Public Sector for Future Generations Act”) in June 2019. The legislation was intended to cap the wages of unionized and non-unionized public sector employees for a period of three years to help eliminate a financial deficit. However, this legislation was met with significant displeasure by unions and employees alike, which resulted in the constitutionality of the legislation being assessed by both the Ontario Superior Court of Justice and the Ontario Court of Appeal.

This blog provides oversight of Bill 124 and its procedural history. It also reviews the decisions from both courts and considers the future impacts of the Court of Appeal’s recent decision, finding that the legislation is unconstitutional.

What Is Ontario Bill 124?

Protecting a Sustainable Public Sector for Future Generations Act (“Bill 124”) was introduced in June 2019 and received royal assent on November 7, 2019. Bill 124 is a relatively new law that capped wage increases for public sector workers for three years. It affected those working for public sector employees, including those working in public hospitals, universities, schools, non-profits receiving at least $1 million in Government funding, and long-term care homes.

The intention of Bill 124 was for its application to be “exceptional and time-limited” as it generally limited wage increases to one percent annually, subject to certain exceptions. Bill 124 was met with significant criticism from the unionized and nonunionized employees it affected but received even more backlash from unions representing public sector workers.

Ontario Superior Court of Justice Declares Bill 124 Unconstitutional

In 2022, Ontario English Catholic Teachers Assoc. v. His Majesty came before the Ontario Superior Court of Justice, in which several applicants challenged Bill 124’s wage restraint provisions. They argued Bill 124 violated their rights under section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”), which provides for unionized employees’ right to freedom of association and related collective bargaining rights.

The Court found in favour of several unions who argued Bill 124 was unconstitutional, acknowledging it infringed on the applicants’ rights to freedom of association (and this infringement was not saved under section 1 of the Charter). The Court noted Bill 124 did not impact the applicants’ freedom of speech or equality rights. Accordingly, the Court struck down Bill 124 in its entirety, with Justice Koehnen noting:

“[t]he Charter protects not just the right to associate, but also the right to a meaningful process in which unions can put on the table those issues that are of concern to workers and have them discussed in good faith.”

Government Appeals Court’s Declaration That Bill 124 Is Unconstitutional

Immediately following this decision, the Ontario Government indicated it would appeal. When the matter came before the Ontario Court of Appeal, the Government argued the lower court “erred in holding that the financial impact of the Act’s limits on the compensation increases substantially interferes with the respondent’s rights to a meaningful process of collective bargaining.” It also claimed that the lower court mischaracterized the critical reason the legislation was put into place, arguing that it was intended to “manage the province’s finances in a responsible manner and to protect the sustainability of public services.”

The Court of Appeal reviewed the two-part test to assess whether a “substantial interference” with Charter rights under section 2(d) occurred. The test requires the Court of Appeal to:

  1. Assess the importance of the matter to the process of collective bargaining; and
  2. Consider the manner and extent to which the measure impacts the applicants’ collective right to good faith bargaining and consultation.

Legislation Substantially Interferes With Applicants’ Charter Rights

In this case, the Court of Appeal acknowledged compensation is a matter of central importance to the collective bargaining process. Therefore, it determined the first limb of the test was satisfied. Regarding the second limb of the test, the Court of Appeal decided that there had been a substantial interference with the applicants’ Charter rights due to four key findings:

  • There was a lack of meaningful consultation or significant collective bargaining before the implementation of Bill 124;
  • Bill 124 contained a broad definition of “compensation” that significantly restricted what unions could negotiate, noting that “the cap does not just apply to salaries. It also applies to any kind of benefit or compensation that can be monetized, such as sick days, vacation days and other benefits;
  • The terms contained within Bill 124 did not match other collective agreements which were negotiated in the public sector during the same time period, which did allow for wage increases and additional changes in compensation; and
  • Bill 124 contained an “illusory” process for exemptions. The Court of Appeal noted the Government had only granted one of many requests, with the right to strike not being a viable alternative in the circumstances. It further found no evidence presented to indicate what process or criteria the Minister uses in evaluating such requests.

Is the Substantial Infringement Saved by Section 1 of the Charter?

Section 1 of the Charter: “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” As such, in assessing whether the substantial interference by Bill 124 was justified under section 1 of the Charter, the Court of Appeal applied the R. v. Oakes, which requires the Court to:

  1. Determine whether the legislative objective relates to societal concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important; and
  2. Whether the party seeking to rely on section 1 of the Charter has proven the means to be reasonable and demonstrably justified through a proportionality test involving three key components:
    1. The measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective;
    2. The means should impair the right in question as little as possible; and
    3. There must be proportionality between the effects of the limiting measure and the objective.

Court of Appeal Upholds Declaration of Bill 124’s Unconstitutionality in Relation to Unionized Employees

When applying the test, the Court of Appeal found the Government had established that Bill 124 addressed a pressing and substantial objective (responsibly managing the province’s finances while protecting the sustainability of public services). However, this objective was not rationally connected to the legislation insofar as certain workers were not concerned. Additionally, the Court of Appeal found that there were more “minimally impairing” means of achieving this goal.

In particular, Justice Favreau noted:

“organized public sector workers, many of whom are women, racialized and/or low-income earners, have lost the ability to negotiate for better compensation or even better work conditions that do not have a monetary value.”

Bill 124 Should Not Be Completely Struck Out

Upon conclusion of the analysis above, the Court of Appeal agreed with the lower court’s findings that Bill 124 was unconstitutional due to the infringement it had upon the applicants’ rights to freedom of association and collective bargaining under section 2(d) of the Charter. As such, the Court of Appeal upheld the lower court’s decision only in relation to unionized employees who were afforded such protections under the Charter.

The Court of Appeal went on to acknowledge, however, that the lower court erred in striking out the statute in its entirety and noted that “[t]he rights protected by s. 2(d) of the Charter do not apply in the same way to non-represented [non-unionized] employees”. Accordingly, the Court found that Bill 124 is only unconstitutional as it applies to the employees covered within it.

What Does This Mean for the Future of Bill 124?

Following the release of the Court of Appeal’s decision on February 12, 2024, the Ontario Government stated it would not appeal the matter further and would be taking steps to repeal Bill 124 in its entirety. In response to the Court of Appeal’s acknowledgment that the decision has different effects for unionized and non-unionized employees, the Government also said it would implement regulations to exempt non-unionized and non-associated workers from Bill 124 until it is repealed.

Without the constraints of Bill 124, public sector employers now have greater flexibility in resuming wage negotiations for all employees. However, the Broader Public Sector Executive Compensation Act, 2014 continues to apply to particular executives under a limited number of employers, and this decision has not affected applicable compensation restrictions.

Contact the Employment & Labour Lawyers at Willis Business Law for Trusted Guidance and Advice in Windsor-Essex County

The skilled labour and employment law lawyers at Willis Business Law in Windsor regularly advise private and public sector employers on issues arising from various labour and employment-related issues, such as contract negotiation, collective bargaining matters, and dispute resolution. Our team remains atop the everchanging legislative landscape governing workplaces across the province. By helping you understand your obligations as an employer and ensuring you stay informed of upcoming legislative amendments, our employment law team can help you remain compliant while mitigating the risk of future disputes.

From our office in downtown Windsor, Willis Business Law helps clients throughout Windsor-Essex manage their legal needs. To speak with a member of our team regarding your labour or employment law matter, contact us online or at 519-945-5470.

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Employment Law

Important Changes to Ontario’s Working for Workers Act, 2023

Ontario’s Bill 79, the Working for Workers Act, 2023 received Royal Assent on October 26, 2023. Since becoming law, new obligations have been imposed on employers throughout the province, while employees’ rights have been expanded.

This blog will provide a high-level overview of these rights and obligations introduced by the Working for Workers Act, 2023 as it has amended the Employment Standards Act, the Occupational Health and Safety Act, and the Fair Access to Regulated Professions and Compulsory Trades Act, among other pieces of provincial legislation. Employers must be aware of these new requirements and ensure that they are compliant with the new legislation.

Amended Legislation Imposes New Obligations and Increased Fines Against Employers

The Working for Workers Act, 2023 has amended several critical areas for employees and employers across Ontario. It also highlights additional initiatives impacting much of the province’s workforce. Some of these vital points are outlined in further detail below.

Occupational Health and Safety Act (OHSA) Offences

Under the Working for Workers Act, 2023, corporations convicted of an offence under the Occupational Health and Safety Act will see an increase in maximum fines from $1,500,000 to $2,000,000. However, it is essential to note that corporations alleged to have committed a violation before October 26, 2023 will not be subject to this increased penalty. This increase comes after a recent maximum fine increase in 2022, which saw the maximum fine for individual corporate officers and directors increase from $500,000 to $1,500,000.

Group Terminations

The new legislation has amended the Employment Standards Act by expanding the definition of an “establishment” of employment to include employees who work from their private residence (also known as “fully remote employees”). This provides fully remote employees with the same entitlements and protections as employees who work at an employer’s physical location.

As such, fully remote employees are now entitled to the same notice requirements or pay in lieu of notice in cases of mass terminations. Now, when an employee terminates a group of employees within a four-week period, the employer is obligated to provide:

  • 8 weeks of termination notice if 50-199 employees are terminated, regardless of the individual employee’s length of service with the employer,
  • 12 weeks of termination notice if 200-499 employees are terminated, or
  • 16 weeks of notice if 500 or more employees are terminated.

Military Reservist Leave

Previously, military reservists were only permitted to take reservist leave after three consecutive months of employment. Under the new law, military reservists will be granted entitlement to reservist leave (to participate in military skills training or deployment) after two consecutive months of employment. In emergency operations, reservist leave may be granted at any time.

Further, military reservists will be entitled to take leave from work if they are in recovery, treatment, or rehabilitation to recover from mental or physical injuries resulting from their participation in reservist activities.

Protection for Temporary Foreign Workers

The Working for Workers’ Act, 2023 will strengthen protections for temporary foreign workers by increasing fines against employers or other entities convicted of withholding a foreign national’s work permit or passport. The new law has established Canada’s highest maximum fines for those convicted of these offences.

Removing Barriers for Internationally Trained Professionals

The Working for Workers’ Act, 2023 has also amended the Fair Access to Regulated Professions and Compulsory Trades Act to remove employment and qualification barriers for internationally trained professionals looking to enter the Ontario workforce. This amendment imposes an obligation on regulated professions to consult with the government to ensure an adequate number of skilled, competent and qualified regulated professionals working in Ontario as a matter of public interest. Regulated professions are now required to accept “alternative to Canadian experience” when considering an applicant’s registration.

Additional Proposed Amendments in the Working for Workers Four Act, 2023

Additional employment laws were introduced in the Legislative Assembly of Ontario through Bill 149, the Working for Workers Four Act, 2023, on November 14, 2023. These proposed changes include:

  • Requiring employers to disclose salary ranges in job postings and banning employers from requiring “Canadian work experience” in job postings;
  • Prohibiting employers from conducting unpaid “trial shifts” for new restaurant and hospitality workers, barring employers from reducing employee wages for dining and dashing or other stolen property; and
  • Enabling “super indexing” increases to Workplace Safety and Insurance Board benefits beyond annual inflation rates.

Willis Business Law: Providing Trusted Guidance on Employment Law Changes to Windsor-Essex Employers

At Willis Business Law, our labour and employment law lawyers help employers navigate the ever-changing landscape of federal and provincial workplace laws. By helping you understand your obligations as an employer and updating workplace policies, our employment law team can help you mitigate compliance risk and future disputes. We also help employers assess existing workplace health and safety procedures to minimize the risk of workplace incidents and claims. In the event of a dispute, we represent employers and ensure their rights are protected throughout the dispute resolution process and litigation when necessary.

Located in downtown Windsor, Willis Business Law works with clients in Windsor-Essex County and the surrounding regions. To learn more about how we can help you, reach out to us online or call us at 519-945-5470 to schedule an initial consultation with a member of our employment law team.

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Business Law Employment Law

Complying With Privacy Laws and Mitigating a Breach

In a time defined by technological evolution and an increased focus on data security, corporate entities and employers face substantial responsibilities when protecting sensitive information and data. Provincial and federal privacy laws establish the benchmark for safeguarding personal data within the corporate landscape through various regulations and requirements. Navigating these complex legal frameworks generally requires a nuanced understanding to mitigate risks and liability while ensuring ongoing compliance.

This blog explores Ontario’s privacy law, focusing on compliance matters involving the application of data and privacy legislation. It sets out various obligations businesses must follow and considers some best practices and strategic approaches for corporate entities to mitigate liability and risk.

Privacy Law in Ontario

Every individual has a fundamental right to privacy, particularly regarding personal data and sensitive health information. Therefore, public sector institutions in Ontario and each province and territory must protect personal information under various laws and regulations to protect that right. They must also follow strict rules and procedures when collecting, using, and disclosing personal information. In the event of a privacy breach, there are also strict rules that must be adhered to.

Some of the most commonly referred to pieces of privacy legislation are explained in more detail below.

Personal Information and Protection of Electronic Documents Act (PIPEDA)

The Personal Information and Protection of Electronic Documents Act (also called “PIPEDA”) is Canada’s primary piece of federal legislation governing privacy law. It provides a framework for collecting, using, managing and disclosing sensitive and personal information obtained by private sector organizations. This legislation applies to businesses and corporate entities engaged in commercial activities across provincial and national borders.

Freedom of Infomation and Protection of Privacy Act (FIPPA)

The Freedom of Information and Protection of Privacy Act (also called “FIPPA”) is provincial privacy legislation that gives individuals a right to ask public sector organizations and corporations in Ontario for access to information they possess. This legislation applies to most public institutions, as well as the government of Ontario.

Personal Health Infomation Protection Act (PHIPA)

Ontario’s Personal Health Information Protection Act (also called “PHIPA”) outlines health information custodians’ obligations regarding the collection, use, storage, management, and disclosure of personal health information in a manner that protects individual’s confidentiality and privacy.

Proactive Privacy Law Compliance

A breach of privacy can result in significant legal liability, reputational harm, customer distrust, and financial loss for the party who collected and managed the sensitive information. When sensitive data or information is obtained through a privacy breach, it can also have far-reaching impacts on the individuals or businesses whose information was mishandled.

When it comes to corporate privacy law compliance, working with an experienced business lawyer versed in privacy law can help empower corporations with the knowledge to navigate the complex terrain of privacy law while helping foster a culture of data protection and security compliance within their daily operations. When a corporation takes proactive steps to ensure that they are in compliance with the relevant privacy laws, it is also performing due diligence by adding additional layers of protection against a privacy breach.

Employee Education on Compliance and Policy Implementation

By providing employees and management teams with comprehensive training on best practices, corporations can emphasize the importance of data protection and proactive preparation. Ensuring all workers understand the importance of data protection and highlighting the corporation’s work to mitigate security breaches can encourage a culture of vigilance in the workplace and significantly reduce the risks of human error.

Draft and Audit Comprehensive Privacy and Data Policies

Comprehensive privacy policies and procedures in the workplace play a crucial role in privacy compliance and risk management. Corporations must ensure employees and management teams are well-versed and consistently follow and enforce these policies. Beyond initial drafting, corporations should regularly review and update their guidelines on data collection and handling, encryption methods, and secure storage protocols. Further, providing customers and clients transparent communication regarding these policies can help establish trust and accountability between the parties.

Complete Regular Policy Audits

Corporations can go one step further by conducting regular audits and compliance checks to ensure the implemented policies and procedures are practical and up-to-date in accordance with any legislative changes. This ongoing evaluation can be crucial in maintaining data security standards and adapting to changing regulatory landscapes.

Invest in Secure Cybersecurity Technologies

Custodians of sensitive information should consider investing in or upgrading their cybersecurity technologies. Components such as encryption, firewalls, multi-factor authentication, and intrusion detection systems can significantly bolster data security and provide additional protection against potential breaches. Regularly updating and patching systems to address newly identified vulnerabilities is also essential to staying ahead of potential threats.

Be Prepared for Crisis Management

If a privacy breach does occur, time is of the essence. Corporations should have a well-defined response protocol that includes containing the breach, identifying the extent of the damage, notifying affected parties, and collaborating with regulatory authorities in accordance with the law. Adequate preparation of an incident response plan is crucial to effectively mitigate the aftermath of a breach.

Contact the Lawyers at Willis Business Law for Trusted Advice on Privacy Law Matters in Windsor-Essex County

The experienced privacy lawyers at Willis Business Law help both private and public sector clients navigate the complexities of provincial and federal privacy laws and regulations to ensure that they remain in compliance with the law and minimize the risk of a breach or complaint. Whether you need advice on data collection and management, assistance drafting privacy policies, or have questions about compliance, our team of knowledgeable lawyers is ready to help.

Located in Windsor’s financial district, Willis Business Law proudly represents clients throughout Windsor-Essex County and the surrounding region. To schedule a confidential consultation with one of our team members, contact us online or call us at 519-945-5470.

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Employment Law

Father Fails to Make Case for Discrimination Based on Family Status Before Ontario Human Rights Tribunal

Family status is a prohibited ground of discrimination in the workplace in human rights legislation, not only in Ontario but across Canada. However, the test for finding such discrimination may vary depending on the jurisdiction in which the alleged discrimination occurred and whether the employer is federally or provincially regulated. An applicant must point to some evidence “beyond mere speculation and accusations” to show that a respondent’s conduct has been contrary to the enumerated grounds in the Human Rights Code.

To minimize the chances of future disputes and allegations of workplace discrimination or constructive dismissal, employers need to maintain open lines of communication with employees, particularly when changes are made to their employment terms. A recent decision from the Human Rights Tribunal of Ontario shows how the Tribunal addressed an application alleging discrimination due to family status.

Application Filed with Human Rights Tribunal Alleging Discrimination Based on Family Status

In Hunter v. HMKRO (Ministry of the Attorney General), the applicant filed an application on April 19, 2018. The application alleged discrimination by the respondent concerning his employment based on family status, contrary to the Human Rights Code.

On March 8, 2023, the Human Rights Tribunal of Ontario (the “Tribunal”) directed that a summary hearing be held to determine whether the application should be dismissed. This direction came from a Case Assessment Direction, which suggested there may be no reasonable prospect that the application would succeed according to Rule 19A of the Tribunal’s Rules of Procedures.

Matter Proceeds to Summary Hearing to Test Discrimination Allegations

Under the Tribunal’s Rules of Procedure, the purpose of a summary hearing is to assess whether an application should be dismissed, either in part or in whole, on the basis that there is no reasonable prospect that it will succeed. This is particularly important if an application concerns issues of fairness related to the Human Rights Code, as the Tribunal cannot address these allegations.

At this stage, it was left to the Tribunal to simply determine whether the application has “no reasonable prospect of success” and not to assess whether “the applicant is telling the truth or assessing the impact of the treatment he experienced.” Instead, the test “of no reasonable prospect of success” is determined by “assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.”

Further, the Tribunal noted that “accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly.” Instead, a summary hearing aims to consider whether the applicant can provide evidence to support his claim that he has been discriminated against, contrary to the Human Rights Code. In the matter of Forde v. Elementary Teachers’ Federation of Ontario, the Tribunal explained that an application may continue following a summary hearing if it is found that there is a “basis beyond mere speculation and accusations to believe that an applicant could show a breach” of the Human Rights Code.

Allegations Based on Denial of Request for Accommodations at Workplace

The application arose following an incident of late arrival at work. The applicant was employed as a court reporter and, in his role, was required to arrive at the courtroom 30 minutes before the scheduled proceeding to ensure that the equipment is correctly set up. Generally, the courthouse reporters are scheduled for 8:30 a.m., 9:00 a.m. or 9:30 a.m. for court proceedings that start 30 minutes later.

In his application, the applicant stated that he had an informal arrangement with his employer to start work at 9:30 a.m. as he was required to drop his children off at school at 9:20 a.m. He claimed that management asked questions about this arrangement in or about September or October 2017 and directed him to submit a formal accommodation request. However, this formal request was denied in February 2018, and the applicant alleged he was told that he would be scheduled for shifts beginning at 9:30 a.m. for four weeks so that he could make alternative arrangements for school drop-off. However, he was not going to be guaranteed 9:30 a.m. shifts beyond that time.

Scheduling Changes Leads to Allegations of Constructive Dismissal

The applicant alleged that he was scheduled for a shift beginning at 9:00 a.m. on March 14, 2018. However, he did not report to work. Again, on March 29, 2018, he reported late and didn’t work that day. The applicant alleged the employer intended to constructively dismiss him by getting him to either accept the changes to his work schedule or leave his employment (which he did on March 29, 2018).

The applicant disagreed with the treatment by his employer. However, the Tribunal noted that the applicant “could not point to any evidence to make the connection between the alleged lack of support and the loss of employment with the respondent and his Code-enumerated ground.”

Tribunal Does Not Have Jurisdiction Over Allegations of General Unfairness

For an application to fall within the Tribunal’s jurisdiction, it must:

… “provide some factual basis beyond a bald assertion which links their ground(s) to the respondent’s actions and explains why they think that these actions are discriminatory in nature.”

The Tribunal ultimately dismissed the application after finding that it had no reasonable prospect of success. The Tribunal explained that even if all the alleged facts were accepted as true, the applicant failed to provide evidence beyond his own suspicions that he was differentiated by the respondent based on Human Rights Code grounds.

The Employment and Labour Lawyers at Willis Business Law Represent Employers in Workplace Disputes

The skilled employment lawyers at Willis Business Law, led by J.P. Karam, understand the importance of implementing proper workplace policies and ensuring compliance with both provincial and federal legislation, including the Human Rights Code. However, when issues arise relating to workplace health and safety and discrimination, it is vital for employers to understand the process once a complaint has been made. At Willis Business Law, our employment and labour lawyers help clients prepare proactively to avoid future incidents and disputes. In cases where an issue proceeds to litigation, our team is ready to protect your interests and advise you of your options to obtain the best possible result.

Willis Business Law is conveniently located in Windsor’s financial district. Our firm proudly represents clients throughout Windsor-Essex and the surrounding areas. To schedule a consultation with a member of our team regarding claims of workplace discrimination or occupational health and safety concerns, contact us online or call us at 519-945-5470.

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Workplace Health & Safety

Consequences of Workplace Occupational Health and Safety Act Violations in Ontario

Ontario employers are responsible for ensuring their workplace complies with the provincial Occupational Health and Safety Act and regulations. Aside from the compliance benefits of promoting workplace health and safety, maintaining high standards in accordance with the law can also help improve employee productivity and the company’s business. However, incidents and employee misconduct may still occur despite implementing rigid safety guidelines. Such misconduct may violate the legislative standards, and the employer may be charged under the Occupational Health and Safety Act. So, what are the consequences of such charges?

Overview of the Occupational Health and Safety Act

In Ontario, the Occupational Health and Safety Act (“OHSA”) and regulations prescribe the legislative standards to maintain satisfactory workplace health and safety throughout the province. The OHSA sets out various workplace policies that employers must create and adhere to in order to mitigate workplace risks and safety hazards. The majority of provincially regulated workers and employers across Ontario are subject to the standards and requirements set out in the OHSA.

The Ontario Ministry of Labour, Training and Skills Development is responsible for the promotion, regulation and compliance enforcement of the OHSA. In order to address complaints and monitor workplace compliance, the Ministry often instructs inspectors to conduct workplace investigations.

To learn more about defending charges under the Occupational Health and Safety Act, read our recent blog here.

Company and CEO Fined $100,000 for OHSA Violation

Earlier this year, THS Industries Inc., a Kitchener-based steel nail manufacturing company, and the company’s Chief Executive Officer were fined a total of $100,000 due to their failure to guard their nail-maker machines properly.

The Ministry of Labour, Immigration, Training and Skills Development (the “Ministry”) conducted a workplace investigation in December 2021, pursuant to an “anonymous complaint that workers were bypassing machine guarding devices on nail-maker machines.” The investigation uncovered that several machines had unfixed access gates. This was contrary to section 25 of the Regulation for Industrial Establishments, which requires that nip hazards or any part of a machine that can pose a danger to a worker’s safety must have a guard or other device that prevents access to the pinch point. Without these precautions, workers are at risk of accessing moving parts inside of the machines.

Employer and Director Failed to Take Reasonable Care

During the investigation, the Ministry also noted that inspectors saw a machine running with an open lid and that “fixed guards had been removed” from several nail-maker machines.

The Ministry found that both the company, as the employer, and the CEO, as a director of the company, “failed to take all reasonable care to ensure equipment, materials and protective devices… were provided for nail-maker machines, leaving workers at risk of accessing moving parts inside the machine.”

While the Ministry confirmed that no workers were hurt, they emphasized the fact that the machines could have resulted in catastrophic injuries.

Substantial Fines Following Three Sanctions in Six Years

After pleading guilty to several violations at the Ontario Court of Justice, THS Industries Inc. received a fine of $85,000 under section 25(1)(a) of the OHSA, and the company’s CEO was fined $15,000 under section 32(a) of the OHSA. The Court also imposed a mandatory victim fine surcharge of 25% under the Provincial Offences Act, which is credited to a government fund used to assist victims of crime.

Since this was the company’s third conviction in six years, the fines resulting from the OHSA charges were substantial. These fines came after a worker was seriously injured in January 2018 when they became pinned between two machine rollers during operation, resulting in a fine of $50,000 to the company. The company was also convicted when it was discovered that a machine was unguarded in April 2016. Despite the Ministry placing a stop work order on the machine, it was used before the order was lifted, resulting in a $20,000 fine against the company.

Occupational Health and Safety Act Sanctions and Consequences

This matter serves as a reminder to employers throughout the province that not only are charges under the Occupational Health and Safety Act serious and can have substantial financial consequences, but that the health and safety of all workers should be paramount.

Ensuring that workplace health and safety policies remain up-to-date and are prepared in accordance with the OHSA can help employers mitigate safety risks and minimize exposure to liability due to OHSA infractions. It is also critical to ensure that employees are aware of and are trained in the company’s workplace rules and procedures.

By working with an experienced lawyer, employers and company directors can better understand their responsibilities and obligations under the OHSA to avoid future incidents or violations. However, if an employer is charged under the OHSA, it is critical to contact an experienced employment lawyer who can guide you through the process and defend such charges.

The Employment Lawyers at Willis Business Law Represent Employers Facing Charges Under the Occupational Health and Safety Act

The trusted employment law team at Willis Business Law, led by J.P. Karam, understands the importance of ensuring that your workplace complies with provincial and federal law. If an employer is subject to a workplace investigation or a charge under the provincial Occupational Health and Safety Act, we ensure that our client’s rights are protected while positioning them for the best possible outcome. We help employers assess workplace health and safety and prepare adequate and proactive workplace policies to avoid incidents and future disputes.

Willis Business Law is located in Windsor’s financial district and represents clients throughout Windsor-Essex and the surrounding regions. To speak with a member of our team regarding your questions about OHSA violations, contact us online or call us at 519-945-5470.

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Employment Law Wrongful Dismissal

Can an Employee’s Silence Constitute Implied Condonation to a Layoff?

While a layoff and permanent dismissal may seem like similar concepts, the two terms refer to starkly different processes and consequences. A permanent dismissal, or termination, refers to the end of employment. In contrast, layoffs are generally intended as temporary measures in which the employer intends to recall the employee back to work once the layoff period is over. While an employee may be laid off for many reasons, it is not uncommon, particularly in the last few years, for layoffs to be caused by an employer’s economic challenges.

Legislation Governing Layoffs in Ontario

A layoff occurs when an employer seeks to temporarily end an employee’s employment for a specified reason and duration of time, after which point the employer will call the employee back to work. In Ontario, the Employment Standards Act states that an employer may layoff an employee for a total of 13 weeks within a 20-week period or for a total of 35 weeks within a 52-week period, as long as the employer maintains the employee’s benefits.

If the employer fails to recall the employee to work within the specified periods, the employee can presume their employment has been terminated. Further, while an employer’s decision to layoff an employee may be permitted under the applicable legislation, it may violate a common law principle. Therefore, to mitigate potential claims by an employee, employers need to ensure that the employment contract includes the right to layoff an employee.

Employee Brings Claim for Wrongful Dismissal Following Pandemic Layoff

In the recent Ontario Court of Appeal decision in Pham v. Qualified Metal Fabricators Ltd., the appellant employee began working with the respondent employer on October 16, 2000. He was subsequently laid off by the employer on March 23, 2020, at the age of 51. The employer, Qualified Metal Fabricators, manufactured metal structures, earning a significant portion of its sales from the aerospace and food service industries.

As a result of the global pandemic, the employer suffered substantial financial losses. Consequently, the employer laid off 31 of its 140 employees, including the appellant. The employee had not previously been laid off by the employer and was told by the plant manager that he would be called back to work by June 19, 2020.

During the layoff meeting, the employee was provided with a “Layoff Letter,” which stated that his benefits would continue during the layoff. The Layoff Letter also stated that the layoff was conducted in accordance with the employer’s work agreement. Despite there being a signature beside the employee’s name, the employee claimed that he did not sign the Layoff Letter.

Layoff Extended Multiple Times by Employer, Claiming Employee on Infectious Disease Emergency Leave

The employer extended the layoff for a period of “up to 35 weeks” on June 2, 2020. The employer subsequently extended the layoff from September 23, 2020, to December 9, 2020, through September 4, 2021.

The employer provided the employee with a letter indicating that the layoff was conducted in accordance with the Employment Standards Act, and more specifically, Ontario Regulation 228/20, which provides that an employee who had an elimination of, or a temporary reduction in, work hours due to COVID-19 was deemed to be on Infectious Disease Emergency Leave instead of being terminated.

Employee States He Did Not Consent to the Employer’s Layoff

The employee claimed that he did not provide his employer with consent to the layoff, nor did they request it. On December 22, 2020, counsel for the employee advised the employer that he would be commencing a claim for wrongful dismissal. The employer replied two days later, stating that the employee signed a document agreeing to the layoff, and the employer hoped he would be recalled shortly.

The employee filed a Statement of Claim in January 2021, after which the employer brought a motion for summary judgment to dismiss the employee’s claim because he had “agreed to or condoned the layoffs or alternatively, failed to mitigate his damages by not seeking new employment.”

The motion judge dismissed the employee’s wrongful dismissal claim and granted the employer’s motion for summary judgment. The employee appealed this finding to the Court of Appeal for Ontario.

Court of Appeal: Laid-Off Employees Entitled to “Wait and See” Before Electing to Sever Employment Relationship

The employee raised three grounds of appeal, claiming that the motion judge erred in the following:

  1. Proceeding on the mistaken understanding that both the employer and employee sought summary judgment;
  2. Finding an implied agreement to the layoff because he was aware that the employer had laid off several of his co-employees in previous years; and
  3. Deciding that he had condoned the layoffs and was therefore not wrongfully dismissed by signing the letter, seeking legal advice, and/or not objecting to the layoff.

In its analysis, the Court noted that constructive dismissal may be established by either:

  1. The employer’s breach of an essential term of the employment contract; or
  2. A course of conduct by the employer that establishes that it no longer intends to be bound by the employment contract.

Further, without a contrary express or implied term in the employment agreement, a unilateral layoff by an employer constitutes a substantial change to an employee’s employment contract, which can be deemed a constructive dismissal, even when the layoff is temporary. In situations where the employment agreement does not contain a term regarding layoffs, such as in this case, it will not be readily implied that the employer has the right to do so. The Court found that the fact that the employee was aware of his co-employees’ previous layoffs was irrelevant and did not create a legal basis for the employer to layoff the employee.

The Court highlighted the fact that section 56(1)(c) and 56(c) of the Employment Standards Act provides a laid-off employee with 35 weeks to “wait and see” if they are called back to work before they may elect to terminate and/or sever the employment relationship through a claim for constructive dismissal.

No Requirement for Employee to Ask Employer for Recall Information Before Bringing Wrongful Dismissal Claim

In its review of the evidence, the Court found that the motion judge failed to consider that the employee is permitted to take “reasonable time to assess contractual changes before they are forced to take an irrevocable legal position.”

Secondly, the Court found no evidence that the employee expressed a positive action constituting condonation of the layoff.

Thirdly, the Court found that a previous decision that the motion judge distinguished was actually similar to the employee’s position, as the employee was unable to condone changes to his employment agreement because he was not actively working during this time.

Finally, the Court highlighted that there is no requirement for an employee to request additional information from their employer concerning their recall date before pursuing a claim for constructive dismissal.

Court of Appeal Finds Employee was Constructively Dismissed

The Court of Appeal for Ontario ultimately held that an employer cannot infer an employee’s consent to a layoff from mere silence alone. The Court held that there was no evidence to support the motion judge’s finding that the employee’s wrongful dismissal claim should be dismissed, as there was a live issue regarding whether or not the employee condoned the layoff.

This case is an important decision for employers to ensure that any written employment contract contains the right to layoff an employee. Further, this decision shows that while a layoff may be conducted in a manner permitted under the Employment Standards Act, this fact alone is irrelevant to the issue of whether the layoff may be constituted as a constructive dismissal.

Contact the Employment Lawyers at Willis Business Law in Windsor for Advice on Layoffs and Terminations

The trusted employment law team at Willis Business Law, led by J.P. Karam, works closely with employers to understand their needs and proactively mitigate potential employment law disputes. When an employer must defend a claim brought by an employee, we ensure that our clients have a comprehensive understanding of the law that applies to their situation and have sufficient information to make informed decisions as we work to resolve the matter.

Willis Business Law is based in Windsor’s downtown financial district and serves clients in Windsor-Essex and surrounding areas. To schedule a confidential consultation regarding employment contracts or wrongful dismissal claims, contact us online or by phone at 519-945-5470.

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Business Law Employment Law Mediation

Dina Mejalli-Willis and J.P. Karam Named as Recipients of Windsor Law Alumni Awards

Willis Business Law is proud to announce that its partners, Dina Mejalli-Willis and J.P. Karam, have been selected as the recipients of two prestigious Windsor Law Alumni Awards.

Dina Mejalli-Willis Receives 2022 Extraordinary Contribution to Windsor Law in Memory of John Mountain ’86

Dina Mejalli-Willis has been awarded the 2022 Extraordinary Contribution to Windsor Law in Memory of John Mountain ’86. Following her graduation from Windsor Law, Dina has remained active in the Faculty of Law as a sessional instructor in Insurance Law, Contract Law, Sales Law and Access to Justice. Outside of the classroom, Dina has acted as a judge/mediator for various student moots and mediation competitions, served as Master of Ceremonies at Windsor Law’s 50th anniversary, and was a Supervising Lawyer with Pro Bono Students Canada for the Windsor Women Working with Immigrant Women project. Dina has supported scholarships at Windsor Law for academic achievement and is a proud supporter and sponsor of the Transforming Windsor Law Campaign.

Dina is an accomplished and well-respected litigator in the Windsor-Essex community and is the managing partner at Willis Business Law. She has represented clients at all levels of court in Ontario and has appeared before various tribunals. Dina advocates for early and effective resolution and draws on her extensive experience in the courtroom and negotiations to aid her as a mediator. In addition to her commitment to the firm’s effective management, Dina is directly involved in various projects, including technology optimization and process improvement. She oversees the firm’s Student Program and Associate Development Program, serving as the firm’s Articling Principal, and is Chair of the Student Committee.

A well-known member of the Windsor-Essex community, Dina’s commitment to inclusion and equity is demonstrated through her involvement in various legal and non-legal initiatives. She is a member of the Essex Law Association, Windsor Lawyers Feed the Hungry Bowl-a-Thon Committee and a volunteer Manager of a LaSalle Stompers Junior Soccer Team where she is able to encourage and empower young females. Dina has received several awards recognizing her professional achievements and dedication to community service.

J.P. Karam Awarded 2022 Dual JD Emerging Leaders in the Law Award

J.P. Karam has received the 2022 Dual JD Emerging Leaders in the Law Award. This award recognizes Windsor Law alumni within ten years of graduation who have shown leadership in the legal profession and/or service to their community. J.P. attended the University of Windsor and graduated with a dual Juris Doctor degree from the University of Windsor and the University of Detroit Mercy, respectively. During his undergraduate studies, J.P. was awarded the Neil Reimer Award, which showcases the student with the highest overall GPA in the graduating class. He was also named to the Dean’s Honour Society by the University of Detroit Mercy School of Law and the University of Windsor.

Following his call to the Ontario Bar in 2013, J.P. began his legal career in Toronto before returning to Windsor to build his practice and ultimately joined Willis Business Law to head its Labour and Employment Group. A partner at the firm, J.P. exclusively represents public and private clients with labour and employment law matters. He regularly acts on behalf of clients in human rights applications, labour arbitrations, wrongful dismissal litigation and other employment-related issues. Throughout his career, J.P. has authored and co-authored various publications on occupational health and safety training and employee-employer disputes.

Outside of his practice, J.P. has shown his commitment to the legal community in Windsor through his participation on the awards committee for the Honourable Justice Edward Ducharme Community Service Award, a Lawyer Supervisor for Pro Bono Students of Canada and previously acted as a Director, United Way Centraide Windsor-Essex, Chair, Emerging Philanthropists and Member, Inspiration 100.

Congratulations to Dina Mejalli-Willis and J.P. Karam, and thank you for your dedication to the local and legal communities in Windsor-Essex County!

Contact the Lawyers at Willis Business Law in Windsor-Essex County for Comprehensive Advice and Trusted Representation in Business and Employment Disputes

The knowledgeable corporate and employment lawyers at Willis Business Law provide comprehensive and honest advice on a variety of issues, including corporate minute book review, collective bargaining negotiation, and drafting workplace policies. The firm conducts tailored assessments to understand our clients’ unique needs so that we can minimize the potential for future conflict and position their business ventures for success. In ongoing disputes, we also offer full and half-day mediation services.

Willis Business Law is conveniently located in Windsor’s financial district and overlooks the beautiful Detroit Riverfront. Our lawyers provide top-tier business law and employment solutions to clients throughout Windsor-Essex County and the surrounding regions. To schedule a confidential consultation with a member of our team, contact us through our online form or call us at (519) 945-5470.

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Workplace Health & Safety

Defending Charges Under Ontario’s Occupational Health and Safety Act

Employers are responsible for ensuring their continued compliance with the guidelines set out in Ontario’s Occupational Health and Safety Act (OHSA) and regulations. Beyond encouraging a safe and healthy environment, maintaining high workplace health and safety standards can also help promote employee productivity and seamless operations.

However, despite an employer’s best efforts to implement adequate policies and training, employee misconduct may still contribute to a violation of such standards. So, as the party responsible for upholding workplace standards, what defences are available to employers against charges under the OHSA?

An Overview of Ontario’s Occupational Health and Safety Act

In Ontario, the Occupational Health and Safety Act (OHSA) and its corresponding regulations are the primary legislation setting standards and regulations on workplace health and safety throughout the province.

The OHSA sets out various workplace health and safety policies that employers are expected to adhere to and implement to manage and mitigate various health and safety hazards and risks in the workplace.

Application of the Occupational Health and Safety Act

The Occupational Health and Safety Act applies to most provincially-regulated workplaces, employers, and workers throughout Ontario, with limited exceptions.

The OHSA defines an employer as a person who “employs or contracts for the services of one or more workers. The OHSA defines a worker as someone who “performs work or supplies services for monetary compensation.” A workplace is any place on or near where the worker performs their work.

Enforcement, Violations and Penalties

The Occupational Health and Safety Act outlines the legal duties and standards that employers, supervisors, owners, suppliers and workers must maintain. However, employers hold the highest responsibility in ensuring that health and safety guidelines are implemented and risks are mitigated in the workplace. Employers are also required to ensure that workers adhere to certain prescribed measures and that workers are provided with the appropriate equipment, protective devices, and materials to maintain compliance.

The Ontario Ministry of Labour, Training and Skills Development is responsible for promoting, regulating and enforcing the OHSA, often through workplace inspections.

Workplace Inspections

An inspector from the Ministry of Labour, Training and Skills Development may conduct a proactive or reactive workplace investigation to ensure a workplace complies with the Occupational Health and Safety Act.

Under the OHSA, an inspector has the authority to:

  • complete investigations at provincially regulated workplaces;
  • issue administrative orders for violations of the OHSA and/or its regulations; and
  • initiate proceedings for charges made under the OHSA and/or its regulations.

It is important to note that interfering with an inspection (for example, by providing the inspector with false information or failing to cooperate with the inspector) constitutes an offence under the OHSA.

After the investigation, an inspector may provide recommendations to the workplace. Alternatively, the responsible party may be prosecuted if the inspector determines that the workplace has committed an offence under the OSHA.

Notice of Compliance

After an inspection, the employer may receive an order to correct a contravention of the Occupational Health and Safety Act. The employer must provide the Minister of Labour, Training and Skills Development with written notice of compliance within three days of complying with the order. As per section 59 of the OHSA, the notice of compliance and the original order must be posted in the workplace for 14 days after notifying the Minister of Labour, Training and Skills Development.

However, if a party disagrees with the inspector’s order, it can be appealed under section 61(1) of the OHSA within 30 days of issuance. Decisions are appealed to the Ontario Labour Relations Board, which will render a final decision.

Consequences of Non-Compliance With OHSA

Consequences for violations of the Occupational Health and Safety Act can be significant. Employers, supervisors and workers can be prosecuted for a breach of the OHSA or non-compliance with an order of the inspector, Minister, or director. If a party is found guilty and convicted of an offence, they may be subject to a fine and/or jail time.

Fines and Imprisonment

The maximum fine for a corporation that violated the OHSA is $1,500,000. A corporate director or officer who fails to enforce compliance with the OHSA can be found guilty of an offence and face up to 12 months of imprisonment and/or a fine of up to $1,500,000. The maximum fine for non-compliance by an individual who is not a corporate director or officer is $500,000.

In 2022, the limitation period for initiating a prosecution under the OHSA was extended from one to two years.

Aggravating Factors in Sentencing

In 2022, the Working for Workers Act, 2022 was enacted and introduced several aggravating factors to be considered when determining an appropriate penalty for an OHSA conviction. These aggravating factors are in line with previous leading case law and are circumstances that call for an increased penalty for OHSA violations.

The aggravating factors now included under section 66(2.2) of the Occupational Health and Safety Act are:

  • The offence resulted in the death, serious injury or illness of one or more workers;
  • The defendant committed the offence recklessly;
  • The defendant disregarded an order of an inspector;
  • The defendant was previously convicted of an offence under this or another Act;
  • The defendant has a record of prior non-compliance with the OHSA or its regulations;
  • The defendant lacks remorse;
  • There is an element of moral blameworthiness to the defendant’s conduct;
  • In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs;
  • After the commission of the offence, the defendant,
    • Attempted to conceal the commission of the offence from the Ministry or other public authorities, or
    • Failed to cooperate with the Ministry or other public authorities; and
  • Any other circumstance that the OHSA prescribes as an aggravating factor.

Defending Against Occupational Health and Safety Act Charges

Employers must keep up-to-date workplace policies and procedures that comply with the Occupational Health and Safety Act. Further, all workers and other individuals present at the workplace must be adequately trained to maintain a safe workplace. While it is impossible to completely remove the risk of potential hazards, taking time to ensure robust preventative measures are in place can help defend against potential charges if an accident occurs. Working with an experienced employment lawyer is vital to ensure the employer is protected at any stage of an OHSA matter.

Two common defences to charges under the OHSA include “officially induced error” and “due diligence.”

Due Diligence Defence

The due diligence defence is based on court interpretations of section 66(3) of the OHSA. To be acquitted under this defence, the defendant must establish that they took all reasonable and required precautions to avoid the incident, despite the incident occurring.

The case of R. v. City of Sault Ste. Marie (City) states that the defence of due diligence is available in situations where:

  1. The accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent; or
  2. The accused took all reasonable steps to avoid the particular event.

The first portion of the defence requires the defendant to have genuinely believed that they were compliant with the provisions of the OHSA. The second tier of the defence establishes that, despite the violation, the defendant took all reasonable steps and precautions to remain compliant with the OHSA. However, while courts acknowledge defendants may not be perfect in their due diligence efforts, asserting the defence of due diligence comes with a high threshold for the defendant to meet.

No exceptions for the “expense of compliance”

Historically, the defence of due diligence could be allowed when the employer established that compliance with a particular provision in the Occupational Health and Safety Act was cost-prohibitive. However, in the case of R. v. Canada Brick Ltd., the Ontario Superior Court of Justice determined arguments based on “the expense associated with compliance cannot generally be sustained.”

The Defence of “Officially Induced Error”

“Officially induced error” refers to situations where the defendant’s actions were based on advice received from an official. The case of Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc. set out the elements of the defence of officially induced error by stating that a successful defendant must show that:

  1. An error of law or law and fact was made;
  2. The defendant considered the legal consequences of their actions;
  3. The advice relied upon came from an appropriate official;
  4. The advice was reasonable;
  5. The advice was erroneous; and
  6. The defendant relied on the advice in committing the act.

In Ontario v. Sunrise Propane Energy Group Inc., the Ontario Court of Appeal highlighted reasonableness as a vital component of the defence of officially induced error. The Court affirmed that this defence might be available to an employer who can prove, on a balance of probabilities, that it reasonably relied on the advice of a public official who administers and enforces a particular statute (the OHSA). However, the threshold for this defence is also high and can be challenging to establish.

Contact the Lawyers at Willis Business Law in Windsor for Trusted Defences Against Occupational Health and Safety Act Charges

The skilled employment lawyers at Willis Business Law work with clients to resolve various employment law disputes. We work closely with employers to provide comprehensive legal advice and develop robust legal solutions on matters involving workplace policies and workplace health and safety. When an employer has been charged for an infraction under Ontario’s Occupational Health and Safety Act, our employment law team, led by J.P. Karam, ensures that employers have adequate information and a sound understanding of their options when establishing their defence.

Located in the heart of Windsor’s financial district, Willis Business Law assists clients throughout Windsor-Essex and the surrounding areas. If you have been charged with a violation under the Occupational Health and Safety Act, or have questions regarding workplace policies, contact us online or call us at 519-945-5470 to schedule a confidential consultation.

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