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Employment Law Workplace Health & Safety

Understanding Workplace Harassment and Discrimination in Ontario 

Workplace harassment and discrimination are pervasive issues that can have profound negative consequences for individuals. In Ontario, a robust legal framework protects employees from these harmful behaviours. Understanding these laws and employees’ rights is crucial for fostering a safe and inclusive work environment. 

Understanding the Legal Framework 

Human Rights Code 

The cornerstone of Ontario’s workplace harassment and discrimination laws is the Human Rights Code. This comprehensive legislation prohibits discrimination and harassment based on protected grounds, which include race, nationality, ethnicity, colour, religion, sex, sexual orientation, gender identity, gender expression, disability, age, marital status, family status, and genetic information. 

  • Race: refers to a person’s ancestry, colour, or ethnic origin. 
  • Nationality: refers to a person’s country of citizenship or origin. 
  • Ethnicity: refers to a person’s cultural heritage or identity. 
  • Colour: refers to a person’s skin colour. 
  • Religion: refers to a person’s beliefs, practices, or affiliations related to a higher power or spiritual force. 
  • Sex: refers to a person’s biological sex, typically male or female. 
  • Sexual orientation: refers to a person’s romantic or sexual attraction to others. 
  • Gender identity: refers to a person’s internal sense of being male, female, or something else. 
  • Gender expression: refers to how a person presents their gender through appearance, behaviour, or mannerisms.   
  • Disability: refers to a physical, mental, or sensory impairment that limits a person’s ability to participate in society. 
  • Age: Refers to a person’s chronological age. 
  • Marital status: refers to a person’s legal relationship status, such as married, single, divorced, or widowed. 
  • Family status: refers to a person’s status as a parent, child, or caregiver. 
  • Genetic information: refers to information about a person’s genetic makeup. 

Occupational Health and Safety Act 

The Occupational Health and Safety Act (OHSA) is crucial in addressing workplace harassment. It requires employers to create a safe and respectful work environment, including measures to prevent and address workplace violence and harassment. 

Defining Harassment and Discrimination 

Harassment 

The Occupational Health and Safety Act (OHSA) defines “workplace harassment” as engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome. 

The kinds of harassment encapsulated by Ontario’s workplace safety laws include: 

  • Sexual harassment: Under the OHSA, this means making unwanted comments or actions based on someone’s gender or sexual identity in the workplace. This also includes sexual solicitations or advances where the harasser is in a position to impact the victim’s job, and they know or ought reasonably to know the solicitation or advance is unwanted. 
  • Verbal harassment: Insults, threats, offensive jokes, or derogatory comments that are based on a protected ground. For example, making offensive jokes about a coworker’s religion or sexual orientation. 
  • Physical harassment: Unwanted physical contact, gestures, or intimidation that are based on a protected ground. For example, touching a coworker’s body in a way that makes them uncomfortable or threatening to harm a coworker based on their race or ethnicity. 
  • Visual harassment: Displaying offensive images or posters that are based on a protected ground. For example, posting sexually suggestive images of women in the workplace. 
  • Cyberbullying: Harassment through electronic means, such as emails or social media, that is based on a protected ground. For example, sending harassing messages to a coworker based on their gender identity. 

Discrimination 

Discrimination occurs when an individual is treated differently based on a protected ground. This can take the form of direct discrimination, indirect discrimination, or harassment. 

  • Direct discrimination occurs when an individual is treated differently because of a protected characteristic. For example, an employer refusing to hire a qualified candidate because of their race or religion would be direct discrimination. 
  • Indirect discrimination occurs when a seemingly neutral rule or practice has a disproportionate negative impact on individuals from a particular protected group. For example, requiring all employees to wear a uniform that conflicts with religious beliefs could be indirect discrimination. 

Employer Responsibilities to Prevent Workplace Harassment & Discrimination 

Employers bear a significant responsibility to create a safe and inclusive workplace and should consider implementing all of the following actions. 

  • Establishing clear policies: Employers must develop comprehensive policies that explicitly prohibit harassment and discrimination, outlining the consequences of such behaviour, and providing clear procedures for reporting and investigating complaints. 
  • Mandating training: Ensuring all employees receive comprehensive training on workplace harassment and discrimination prevention is critical. This training should cover the definition of harassment, protected grounds, the consequences of non-compliance, and the proper steps for reporting incidents. 
  • Prompt investigation: Conduct thorough and impartial investigations of any harassment or discrimination complaints. These investigations should be conducted in a timely manner, with due consideration given to the privacy and well-being of all parties involved. 
  • Taking corrective action: Impose appropriate disciplinary measures, including termination of employment if necessary, when harassment or discrimination is substantiated. 
  • Creating a culture of respect: Fostering a workplace environment where diversity and inclusion are valued, and employees feel comfortable raising concerns without fear of retaliation, is vital. 
  • Providing ongoing support: Offer ongoing support to employees who have experienced harassment or discrimination, including access to counselling services and other resources. 
  • Monitoring the workplace: Actively monitor the workplace for signs of harassment or discrimination and taking proactive steps to address any issues. 

Employee Rights 

Employees have the right to a harassment-free and discrimination-free workplace. Employees who experience harassment or discrimination have the right to: 

  • Report the Incident: Notify their supervisor, human resources department, or other designated reporting authority. 
  • Seek Legal Advice: Consult with a lawyer to discuss available options and explore potential legal remedies. 

Willis Business Law: Providing Thorough Advice on Workplace Health & Safety in Windsor-Essex County 

Workplace harassment and discrimination are serious issues that can have significant consequences. By understanding the legal framework, your rights, and your responsibilities, you can contribute to a safe and healthy work environment

Willis Business Law provides Windsor-Essex employers with proactive, robust legal solutions to address workplace harassment and discrimination issues. The firm’s skilled employment lawyers offer support at all stages, including developing comprehensive workplace policies, assisting with investigations, and providing workplace remediation services. To schedule a consultation, please call 519-945-5470 or reach out online

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Employment Law

Navigating Employee Privacy in the Workplace

As the modern workplace is increasingly digitized, technology plays a pivotal role in operations across many industries. While this has led to increased efficiency, it has also raised significant concerns about employee privacy. Balancing the need for productivity and security with respect for individual rights is a delicate task for Ontario employers. However, Ontario’s employment laws offer a robust framework to protect workers’ rights and ensure fair workplaces across the province. As such, employees and employers must navigate their employment relationship effectively under these rights and obligations.

This blog post provides an overview of crucial employee rights in Ontario, focusing on areas such as wages, hours of work, leaves of absence, and workplace safety. It highlights what employers should know about their employees’ rights and provides practical tips for employers to help them navigate these rights while managing the workplace.

Employee Privacy in the Workplace

Individuals have a right to privacy in the workplace, which includes:

  • A reasonable expectation of privacy extending to personal belongings, communications, and personal information;
  • The right to access personal information held by the employer and request corrections if necessary;
  • Limited use of personal information; and
  • Protection against disclosure of personal information.

The right to privacy extends even when an employee is on their employer’s premises and/or using their employer’s equipment. However, this right must be balanced against an employer’s need to know certain information about their employees for matters such as payroll, staffing and ensuring employee performance. As such, employers should be mindful of relevant privacy laws and obligations that apply to employee personal information. Unionized employees may also agree to certain provisions pertaining to workplace privacy policies and practices within their collective agreement.

Understanding the Legal Framework

Various federal and provincial laws govern employee privacy rights in the workplace:

Personal Information Protection and Electronic Documents Act

Personal Information Protection And Electronic Documents Act (PIPEDA) is a federal law that governs the collection, use, and disclosure of personal information by private sector organizations, which includes many employers across Ontario. While the Personal Information Protection And Electronic Documents Act primarily applies to federally regulated industries, Ontario workplaces may be influenced by similar privacy policies and workplace practices.

Freedom of Information and Protection of Privacy Act

Ontario’s Freedom Of Information And Protection Of Privacy Act (FIPPA) is a provincial law that governs the privacy rights of public sector employees and the access to information held by public institutions. This law offers protection for personal information that is held by government agencies and organizations.

Occupational Health And Safety Act

The provincial Occupational Health And Safety Act (OHSA) sets out various health and safety standards for the workplace. This legislation also requires employers to take reasonable steps to protect their employees’ privacy, particularly when sensitive health information is involved. Furthermore, under this legislation, employees may report health and safety concerns in the workplace to their employer without fear of reprisal.

Ontario Human Rights Code

The Ontario Human Rights Code is a law that prohibits discrimination and harassment in the workplace on the basis of various enumerated grounds, including race, sexual orientation, gender, age and disability. Thus, employers must respect each employee’s privacy in these areas, and employees have the right not to be subjected to harassment or discrimination in the workplace based on these grounds.

Collective Agreements

Unionized employees may also be subject to additional protections under a collective agreement negotiated by their union. These agreements may contain provisions related to employee privacy, such as drug testing policies or surveillance restrictions, that employers must adhere to.

Common Workplace Privacy Issues

Several types of workplace privacy issues may arise, such as:

  • Electronic Monitoring: With the increase in the use of technology in the workplace, employers may be tempted to monitor employee emails, internet usage, phone calls, or computer activity. While monitoring may be justified in certain circumstances, it must be done with clear policies, reasonable expectations, and respect for employee privacy.
  • Workplace Surveillance: Many employers utilize video surveillance in the workplace. While often necessary for security purposes, such surveillance measures must be implemented in accordance with the applicable laws with clear guidelines and limitations. Employees should also be informed about what type of surveillance will be conducted and what the purpose of such surveillance is. It also should not infringe on an employee’s reasonable expectation of privacy.
  • Drug and Alcohol Testing: Employers may conduct employee drug and alcohol testing in specific circumstances, such as safety-sensitive positions or in particular industries. However, the employer must ensure they have reasonable grounds to conduct such testing and follow proper procedures during the testing process.
  • Personal Information Collection: Employers may collect personal information for various reasons, such as payroll, employee benefits, and performance management tracking. However, such personal information must be obtained correctly, handled securely and in compliance with privacy laws.

Potential Consequences of Privacy Infringement

If an employer fails to respect an employee’s privacy, they may face serious legal repercussions, such as:

  • Privacy breaches resulting in fines and reputational damage;
  • Employment standards violations and related claims under the Employment Standards Act;
  • Complaints under the Human Rights Code; or
  • Common law claims pursued by employees for invasion of privacy or breach of confidence.

By understanding the legal framework and implementing appropriate policies, employers can balance the need for productivity and security with respect for employee privacy.

Mitigating Privacy Issues in the Workplace

Employers must tread carefully to avoid infringing on employee privacy rights. However, by taking certain steps and precautions, employers can mitigate employee privacy issues in the workplace. Some helpful tips for employers to consider when addressing employee privacy matters include:

  • Developing clear and comprehensive workplace policies regarding the organization’s stance on privacy, electronic monitoring, and data collection;
  • Obtaining explicit consent from employees pertaining to the collection, use, or disclosure of personal information;
  • Limiting the collection of personal information and only collecting such information when it is necessary for business operations;
  • Implementing various security measures that aim to protect employee data from unauthorized access, use, or disclosure;
  • Providing employees with training and education about privacy rights and responsibilities in the workplace; and
  • Conducting regular reviews of privacy policies and practices to ensure that ongoing legal compliance is maintained.

Contact Willis Business Law for Comprehensive Legal Advice on Employment Law Matters

The team of experienced employment law lawyers at Willis Business Law regularly help employers navigate a variety of employment-related issues, including wrongful dismissal claims, defending against occupational health and safety charges, and drafting workplace policies. We provide comprehensive legal advice and guidance to private and public sector institutional clients across Windsor-Essex County.

Willis Business Law is located in the heart of Windsor’s financial district and represents clients through Windsor-Essex County and the surrounding regions. To arrange a confidential consultation with one of our employment lawyers, call us at 519-945-5470 or reach out online.

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Business Law Employment Law

The Balancing Act: Workplace Reorganization and Mitigating Risk

The corporate landscape is constantly evolving and Ontario businesses are not immune to the need for change. Workplace restructuring can be necessary to ensure that businesses remain competitive and adapt to market shifts. However, restructuring can also be stressful and uncertain for employees, giving rise to potential legal claims from affected employees.

This blog will explore workplace restructuring and common reasons for reorganization. It will also consider potential claims employers may face from employees and provide practical tips to help employers mitigate their risk through proper planning and communication.

Defining Workplace Reorganization

Workplace restructuring (or workplace reorganization) refers to the process of reorganizing a company’s operations to improve efficiency, adapt to changing circumstances, or achieve specific goals. It also refers to the process of re-evaluating the business’ employment structure at a closer level, which involves reviewing workplace policies, employment contracts, and staffing levels. Accordingly, workplace reorganization can create or eliminate specific jobs or departments within the company.

Workplace restructuring is a broad term used to encompass a variety of changes, including:

  • Changes to a management structure to create new leadership roles or centralize decision-making;
  • Downsizing through layoffs or early retirement programs;
  • Merger and acquisition restructuring to streamline operations and eliminate redundancies; and
  • Consolidation of departments to combine personnel or functions to improve efficiency and reduce overlapping tasks.

In essence, a workplace restructure or reorganization occurs when a business makes strategic adjustments that will impact its operations.

Common Reasons for Workplace Restructuring

The driving forces behind a workplace reorganization can vary, but some common reasons can include, but are not limited to:

  • Mergers or acquisitions: After a merger or acquisition, the new controlling company may need to make critical labour decisions to address the business’ needs regarding costs, efficiency, and market power.
  • Change to business strategy: A shift in business goals or target marking may necessitate changes in personnel and skill sets.
  • Economic downturn: A reduction in revenue may require a business to assess various cost-cutting measures, such as workforce reductions.
  • Changes to the competitive landscape: Technological advances and other innovations can quickly disrupt industries, and as local and global economies evolve, businesses may need to make changes to remain relevant and profitable.

Identifying Risk During a Workplace Reorganization

Workplace restructuring and related processes and decisions can potentially give rise to possible claims from affected employees. While employers have the right to restructure their operations, this right is not absolute, as employees also have rights.

Potential employee claims that might arise from a restructuring can include:

  • Wrongful Dismissal: If an employee feels their termination was unjust or adequate notice (or pay in lieu thereof) was not provided, they might bring a wrongful dismissal claim.
  • Constructive Dismissal: This arises when an employer unilaterally makes significant changes to an employee’s contract of employment or working conditions, making it unreasonable for them to continue working. Some common causes of constructive dismissal claims include forcing employees to relocate, amending their pay structure, adding additional responsibilities to roles without providing extra compensation, or substantially changing their job description. In such cases, the employee might claim they were forced to resign and seek compensation.
  • Human Rights Claims: As outlined in the Human Rights Code, workforce decisions cannot be based on discriminatory grounds like race, gender, age, or disability when restructuring. If employees feel their selection for termination or change in role was discriminatory, they could file a human rights complaint.
  • Damages for Breach of Employment Contract: If an employer violates the terms of an employee’s contract during the restructuring process, a breach of contract claim might arise. For example, an employee may commence a claim if the employer fails to provide or pay out benefits, vacation pay, leave entitlements, or other employee rights under applicable provincial or federal employment legislation (such as the Ontario Employment Standards Act).

How Can Liability Be Mitigated?

Employers and business owners may employ various strategies to mitigate risk and legal liability during a workplace restructuring. Layoffs and job terminations must be appropriately handled and must be in compliance with all applicable employment laws and standards. If the specified processes are not followed, they may give rise to costly wrongful dismissal claims. Even altering an employee’s job duties or employment contract terms can lead to constructive dismissal claims.

If mishandled, termination letters and severance agreements (including any restrictive covenants, such as non-compete or non-solicitation clauses) can also give rise to litigation. However, by working with a knowledgeable employment lawyer, you can ensure that each step of the reorganization process is handled correctly so employers can mitigate potential legal and financial pitfalls.

As such, employers need to take proactive steps, such as:

  • Conducting thorough planning and maintaining comprehensive documentation regarding a restructuring plan, legal compliance and employee performance;
  • Providing employees with open and effective communication, from the announcement of any restructuring decision and the rationale behind the changes;
  • Maintaining transparency by advising of the potential impact on staff and the timeline for the process to avoid misinformation and address employee concerns; and
  • Ensuring the restructuring process is fair, consistent, and follows established policies.

How Can an Employment Lawyer Help During a Workplace Restructure or Reorganization?

Having an experienced employment lawyer guide your business through a reorganization or restructuring is critical to ensuring a smooth transition, limiting liability, and avoiding unnecessary costs and litigation. A skilled lawyer will ensure that employee restructuring, layoffs, and terminations are handled in compliance with all legislative requirements to minimize the risk of lawsuits and employment standards claims.

Your employment lawyer may assist with various aspects of the restructuring or reorganization process, including, but not limited to:

  • Drafting and reviewing termination letters and other communications to employees;
  • Drafting and reviewing severance offers and agreements to ensure legal compliance;
  • Preparing non-disclosure agreements and other restrictive contracts upon termination;
  • Developing and assessing restructuring plans; and
  • Negotiating disputes with employees and their legal counsel to reach timely and cost-effective resolutions.

Contact the Employment Lawyers at Willis Business Law for Assistance With Workplace Restructuring and Reorganization

At Willis Business Law, our skilled employment lawyers utilize their extensive experience to help business owners and employers seamlessly navigate workplace restructuring and reorganization. From preparing a restructuring plan, to drafting employee communications, and reviewing severance packages, our experienced employment law team regularly advises and guides clients through these complex processes. We will help you identify and mitigate risk, ensure that your business remains compliant with statutory requirements, and help you proactively minimize the chances of employee claims. To speak with a member of our team regarding your workplace reorganization concerns, contact us online or call us at 519-945-5470.

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Employment Law

What Ontario Employers Should Know About Bill 149 (Working for Workers Four Act, 2024)

Ontario’s proposed Bill 149 (the “Working for Workers Four Act, 2024”) received royal assent on March 21, 2024. This legislation imposes various new requirements on Ontario employers regarding pay transparency, the use of artificial intelligence (AI) in job postings, and job requirements, among other things.

This blog provides a high-level overview of the updates introduced by Bill 149, along with the corresponding effective dates. It will also provide insight into how the changes introduced under Bill 149 will impact existing employment-related legislation.

Bill 149: Amendments to the Employment Standards Act

As of March 21, 2024, some legislative amendments introduced under Bill 149 have been implemented. Specifically, Bill 149 has already amended the Employment Standards Act in the following ways:

  • Trial Periods: Unpaid trial shifts are banned, and work that an individual performs during a trial period will now be considered “training” and must be paid, and the individual is considered an employee under the legislation; and
  • Wage Deductions: Employers are prohibited from making deductions from an employee’s wages due to loss of property or a cash shortage, which includes situations where a customer leaves a business without paying for goods or services sought or received, such as food or gas.

Changes in Effect as of June 21, 2024

As of June 21, 2024, the following amendments to the Employment Standards Act will be effective:

  • Vacation Pay: Vacation pay arrangements must be made between the employee and employer, and the terms of such arrangement must be outlined in an agreement. Vacation pay must be paid out in accordance with the timing outlined in the agreement.
  • Tips: Employers who opt to pay their employees’ tips and gratuities by cheque or cash must give these to the employee at their workplace or some other place that is agreeable to the employee. Further, the employer must post any tip sharing or “tip pool” policy in the workplace, and a copy of this policy must be retained for three years.

Additional Updates to be Named by Proclamation

In addition to the above-noted amendments, there are further changes which will be implemented under Bill 149; however, the date on which these requirements will come into effect is not yet known:

  • The Use of Artificial Intelligence (AI): In publicly advertised job postings, employers must include a statement regarding their use of AI in screening, assessing, or selecting applicants.
  • Canadian Work Experience: Employers will be prohibited from including Canadian work experience requirements in their publicly advertised job postings.
  • Pay Transparency: Employers must include the expected compensation, or range of expected compensation, for any position in a publicly advertised job posting.
  • Retention of Job Postings: Employers must retain copies of every publicly posted job advertisement for three years after the posting is taken down.

Additional Legislative Amendments to Be Implemented Under Bill 149

Beyond the Employment Standards Act, Bill 149 contains updates that will impact other Ontario statutes. Some of these critical changes are summarized below:

Digital Platform Workers’ Rights Act, 2022

On a future date to be proclaimed, Bill 149 will amend the Digital Platform Workers’ Rights Act to allow limits to be imposed on the length of a recurring pay period. Further, regulations will be enacted to prescribe rules to determine compliance with upcoming minimum wage requirements.

Workplace Safety and Insurance Act, 1997

On a date to be proclaimed, once the minimum wage provisions of the Digital Platform Workers’ Rights Act come into force, the Workplace Safety and Insurance Act will be amended to provide that firefighters and fire investigators who have been diagnosed with primary-site esophageal cancer will presumptively be entitled to Workplace Safety and Insurance Board benefits after 15 years of employment. This amendment reflects a 10-year reduction from the previous 25 years of employment requirement.

Fair Access to Regulated Professions and Compulsory Trades Act, 2006

On a future date to be proclaimed, Bill 149 will amend the Fair Access to Regulated Professions and Compulsory Trades Act to require certain prescribed requirements to be met to ensure a regulated profession addresses a candidate’s qualifications in a transparent, objective, impartial and fair manner. These requirements will also apply to a third party who conducts such assessments.

Final Thoughts on the Implementation of Bill 149 in Ontario

Given the upcoming changes introduced by Bill 149, Ontario employers should take this time to review their current policies, practices and contracts and update them, as needed, to ensure continued compliance with these new requirements. Employers should also familiarize themselves with the respective effective dates and ensure they act in accordance with the latest legislative requirements.

By taking proactive steps to prepare for future amendments and working with an experienced employment lawyer, employers can mitigate their risk and feel confident in knowing that their revised policies, procedures, and agreements are drafted in accordance with the applicable laws. Willis Business Law will continue to monitor and provide updates on the impact of these legislative amendments.

Contact the Windsor Employment Lawyers at Willis Business Law for Advice on Workplace Policies and Compliance Matters

At Willis Business Law, our talented team of experienced labour and employment law lawyers frequently work with private and public sector employers, advising on workplace policy drafting, contract negotiation, and termination matters. Our employment law team remains up-to-date on the ever-changing legislative landscape governing workplaces across Ontario to ensure our clients understand their obligations and rights as employers.

Located in downtown Windsor, Willis Business Law proudly represents clients across Windsor-Essex. To speak with a member of our team or to schedule a confidential consultation regarding your labour or employment law matter, contact us online or call us at 519-945-5470.

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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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