RECENT MINISTRY OF LABOUR BLITZ - EMPLOYERS ARE NOT COMPLYING WITH THE LAW

HARD LABOUR

[BY WARDS PC LAWYERS]

The Ontario Ministry of Labour often conducts a compliance ‘blitz’ by inspecting employer businesses across Ontario.

They recently completed a blitz of 304 businesses for general compliance with the Employment Standards Act, 2000 of Ontario.

The result - 232 businesses were not compliant and received compliance orders, notices of contravention, etc.

Most businesses were non-compliant with the ESA requirements for: public holiday pay, overtime pay and vacation pay.

Many were also non-compliant with their record-keeping and ensuring that their employees were working the proper hours of work.

The Ministry says that nearly all employers in Ontario voluntarily comply with compliance-related orders made to them by the Ministry, but the problem is that the orders had to be made in the first place. The Ministry also indicates that most of the non-compliance is due to employers’ lack of knowledge or understanding about the requirements of the ESA, rather than a deliberate effort to circumvent those requirements.

Therefore, most employers are not intentionally falling short of the law, but are doing so because they do not understand fully what the law requires them to do.

The ESA in Ontario is somewhat complex and difficult to understand and implement effectively. While the Ministry Web site provides very good explanation and guidance for compliance with the ESA, employers should consider reviewing their employment practices with a qualified employer lawyer to ensure steps are taken to be compliant.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

read more

HARD LABOUR - EMPLOYMENT AGREEMENTS - DO'S AND DONT'S

HARD LABOUR

[BY WARDS PC LAWYERS]

General tips and information about employment law:

WRITTEN EMPLOYMENT AGREEMENT NOT MANDATORY, BUT ESSENTIAL:

Employment agreements need not be in writing, but they should be. If they are not, the general law in Ontario will apply for termination, including implied terms at law (which can be modified by a written agreement, often to the employer’s benefit). A written employment offers clarity and certainty to both parties. Both are better served by a written agreement and it is highly recommended.   

IMPLIED TERMS:

Generally, even for written employment agreements, there is an implied term at law that employment can be terminated abruptly and summarily for cause (which is a judicially-determined test and a fairly high onus on employers, requiring proper progressive discipline steps prior to termination).

Employment in Ontario is not ‘at will’, like in many jurisdictions in the United States. In Ontario, if there is no cause for termination, an employer can terminate a non-union employee’s employment only if reasonable notice of termination is provided, or compensation equivalent to that reasonable notice.

Sometimes an employer may make fundamental changes to the employment and, if so, it may give rise to a potential ‘constructive’ dismissal, which is different from ‘wrongful’ dismissal (because there is no outright termination). It is generally implied that an employer cannot unilaterally alter or change the employment relationship fundamentally, without consent by the employee.

These types of implied terms can be modified or overridden by a written employment agreement, being another reason they should be utilized, particularly from an employer’s perspective.

Employees also have implied duties for employment, such as confidentiality and loyalty generally. Employers must behave in “good faith” generally – an implied duty. Both parties have a duty to deal honestly with each other during the performance of the employment relationship. If an employer does not, it can give rise to additional claims by an employee and damages payable by the employer in certain circumstances.

MEDIATION AND ARBITRATION CLAUSES:

Typically clauses requiring mediation or arbitration in employment agreements are enforced by Ontario Courts, subject to certain conditions that existed when the employment agreement was entered. Ontario’s Arbitration Act, 1991, governs arbitrations in Ontario. Mediation is generally governed by mediation agreement signed by the parties who are mediating. Arbitration is a common out-of-Court procedure utilized for employment termination in a unionized setting. Mediation is a common tool utilized by the parties to try to voluntarily settle their termination issues as an alternative to litigating them.

ALTERING OR CHANGING EMPLOYMENT AGREEMENTS DURING EMPLOY:

Generally, employers should incorporate into a written agreement a right to make changes to a non-union employee’s duties, role, responsibilities and compensation. If they do not, any such changes could amount to a ‘constructive’ dismissal. Even if that right is reserved by the employer, if the change imposed is fundamental, the employment agreement may not offer the protection envisaged by the employer – it depends on the circumstances. Changes that are minor in nature, or at least not fundamental to the relationship, can often be made by employers without risk of being sued (or at least losing, if sued), even if a written employment agreement is not entered. Fundamental changes must generally be agreed to by the employee or, alternatively, the employer must terminate the existing employment relationship and attempt to negotiate a new employment contract, creating risk to the employer in terms of wrongful termination. It is wise for both parties to consent to fundamental changes in the employment relationship before they take effect. 

Changes to a written agreement for employment, during the employ, are generally unenforceable unless “fresh consideration” is given to the employee, which can take different forms, but often is a payment of money or increase in the employee’s compensation.

Employers must be careful in using short-form letters offering employment, if they intend to have the employee subsequently sign a more fulsome employment agreement (often limiting the employee’s rights or modifying the existing law in Ontario). Generally, the employer will be held to the terms of the initial offer letter, rather than the employment agreement signed afterwards and during employ, unless “fresh consideration” is satisfactorily given to the employee. 

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

read more

INVASION OF YOUR PRIVACY - YOU CAN NOW SUE SOMEONE FOR THAT (WORK AND PERSONAL)

Ontario now allows a person to sue another for damages for invasion of privacy.

This has not always been the case – it is a fairly new development in Ontario. Many assume a right to privacy, but only recently have our Courts recognized a legal right for a person to actually sue another for damages for infringing on privacy.

The legal protection is not called “invasion of privacy”, but rather “intrusion upon seclusion”.

Our Courts now recognize the following types of breach of privacy protections available to mostly everyone in Ontario:

•  intrusion upon a person’s seclusion or solitude, or into that person’s private affairs

•  public disclosure of embarrassing private facts about a person

•  publicity which places a person in a false or misleading light in the public eye

•  appropriation, for another’s advantage, of a person’s name or likeness

In terms of “intrusion upon seclusion” (i.e., breach of your privacy), to succeed in a lawsuit, you would have to establish:

•  the other person’s conduct was intentional or reckless

•  the other person must have invaded, without lawful justification, your private affairs or concerns

•  a reasonable person would perceive the invasion as highly offensive causing distress, humiliation or anguish to you

In a recent Court of Appeal case that recognized this protection and ability to sue, the Court commented: “We are presented in this case with facts that cry out for a remedy. While [the Defendant] is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in [the Plaintiff’s] position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by [the Defendant’s] employer was governed by principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to [the Plaintiff]. In my view, the law of this province would be sadly deficient if we were required to send [the Plaintiff] away without a legal remedy.”

But there are limits to breach of privacy, too. For example, the Court of Appeal also held that if you are sensitive or unusually concerned about your privacy, you may be excluded from this protection.

Your privacy is protected in most, if not all, aspects of your life, including in the employment context, for example.

Your right of privacy is also not absolute. For example, it may conflict with other privacy rights, such as freedom of information and privacy legislation in effect in Ontario and Canada. If so, or if a conflict may exist, your privacy protection may be limited or compromised. 

However, ultimately, your privacy is now recognized by Ontario Courts and you can sue for damages if it is violated, but only after careful consideration of the circumstances and consultation with your qualified litigation lawyer.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

read more

USERNAMES AND PASSWORDS - A KEY PART OF YOUR ESTATE PLAN

Your usernames and passwords for your online accounts should be an important part of your Estate plan.

You should include them in your Will, or in a memorandum to your Trustee for your estate. You should keep these updated regularly.

Currently the law in Ontario and Canada does not properly address digital assets on death. The law is murky in this area, often creating confusion, update and unexpected headache and cost for your successors. 

Commonly when a person passes, family members and Trustees are faced with challenges to assume control of the deceased’s online accounts, including for banking and social media.

Companies who provide these online accounts may require that a Court Order be obtained before any information will be disclosed, which can be very costly and time-consuming.

Examples of this type of information for you might be:

- a person’s social media accounts on death (Facebook, Apple ID, Twitter, Linked-in, etc.)

- online banking

- Gmail and other e-mail applications and services

- software and applications downloaded by the deceased

Most of us use and rely online accounts today. So, imagine the difficulty your family members or Trustee might potentially have in trying manage those for you if you pass or become disabled?

There are many applications and other products available to securely keep and retain usernames, passwords and other important, personal information. Many of those are free.

Your digital assets should be part of your Estate plan. Your estate planning lawyer will hopefully raise this with you during your estate planning process. If not, ask about it.

Until such time as digital assets are better regulated in Ontario, it is up to you to ensure that your successors are given the information they will need to assume and manage your important online (and offline) accounts if you are no longer able to do so.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

read more

HARD LABOUR - NEW WORKPLACE NOISE RULES

HARD LABOUR

[BY WARDS PC LAWYERS]

There will be new noise rules in Ontario workplaces as of July 1, 2016, pursuant to Ontario’s Occupational Health and Safety Act [Regulation (381/15)]. These new rules will apply to many employers in Ontario, including:

  • construction
  • health care
  • schools
  • farming
  • fire services
  • police services

Notable new rules that will be in effect:

  • “all measures reasonably necessary in the circumstances to protect workers from exposure to hazardous sound levels”
  • noise-protection must “include the provision and use of engineering controls, work practices” and, where required (and permitted), hearing protection devices
  • “no worker is exposed to a sound level greater than an equivalent sound exposure level of 85 dBA, Lex,8”, without making workers wear hearing   protection measures
  • hearing protection devices are secondary (not primary) noise-protection measures and will be permitted in only certain circumstances
  • warnings signs are to be posted for areas where the sound level is greater than 85 regularly
  • appropriate hearing protection training must be provided

Here is the new regulation.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

read more

YOUR USERNAMES AND PASSWORDS - DIGITAL ASSETS ARE IMPORTANT IN YOUR ESTATE PLAN

Your usernames and passwords for your online accounts should be an important part of your Estate plan.

You should include them in your Will, or in a memorandum to your Trustee for your estate. You should keep these updated regularly.

Currently the law in Ontario and Canada does not properly address digital assets on death. The law is murky in this area, often creating confusion, update and unexpected headache and cost for your successors. 

Commonly when a person passes, family members and Trustees are faced with challenges to assume control of the deceased’s online accounts, including for banking and social media.

Companies who provide these online accounts may require that a Court Order be obtained before any information will be disclosed, which can be very costly and time-consuming.

Examples of this type of information for you might be:

- a person’s social media accounts on death (Facebook, Apple ID, Twitter, Linked-in, etc.)

- online banking

- Gmail and other e-mail applications and services

- software and applications downloaded by the deceased

Most of us use and rely online accounts today. So, imagine the difficulty your family members or Trustee might potentially have in trying manage those for you if you pass or become disabled?

There are many applications and other products available to securely keep and retain usernames, passwords and other important, personal information. Many of those are free.

Your digital assets should be part of your Estate plan. Your estate planning lawyer will hopefully raise this with you during your estate planning process. If not, ask about it.

Until such time as digital assets are better regulated in Ontario, it is up to you to ensure that your successors are given the information they will need to assume and manage your important online (and offline) accounts if you are no longer able to do so.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

read more

POSTING ABOUT YOUR JOB ON FACEBOOK/SOCIAL MEDIA - USE CAUTION; BE SMART

Employees can be subject to discipline based on social media posts about an employer.

The law in this area is evolving, but there are more and more cases about this in Ontario.

Many employers are developing and implementing social medial policies, but many still do not have those in place, leaving it uncertain what expectations there are in the workplace about employees referring to their job or workplace on social media.

Employees should use caution if they post anything about their job on social media – it is increasingly widespread and often comes to the attention of the employer.

This is especially important if there is a termination of employment – both employees and employers should be very cautious about posting any comments on social media expressing negative feelings about the termination or each other generally. Often these types of posts can surface as evidence in Court cases and impact the outcome.

Another recent example of an employer trying to discipline an employee for social media posts – Centre de la petite enfance Allo mon ami c. Le Syndicat de la Nouvelle Union (CSQ), 2015 QCTA 749. This is a Quebec arbitration, but the principles are consistent with Ontario’s approach to this area of employment.

In that case, the employer both reprimanded and suspended the employee briefly because the employee had “liked” a comment on the employee’s own Facebook page that arguably was negative towards the employee’s employer.

The Arbitrator in the case (the employee grieved the disciplinary suspension) held the suspension was inappropriate, but agreed that a written reprimand was appropriate by the employer (which forms part of the employee’s employment record).

Think carefully before using social medial to express comments about your employer, particularly if they are negative in nature. Generally, social media is not the best forum to air issues about employment, even if they are passing, innocent comments by an employee, not intended to be negatively perceived. On social media, posts can take on a life of their own, which may not be controllable by the employee and may snowball into disciplinary consequences.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

 

read more

DON'T EVEN HOLD YOUR PHONE IN YOUR CAR - THE LAW IS CLEAR (AND STRICT)

Distracted driving in Ontario is now the most common cause of accidents on the road, including fatalities.

Increasingly you notice the vehicle ahead of you does not promptly move forward on the green light (because a mobile device is being used). Alternatively, you  regularly see the driver beside you using a cell phone while stopped at a red light or during very aggravating stop-and-go gridlock on the 401. You likely also see drivers still talking or texting on their phone while actually driving.

Even holding your mobile device while operating a motor vehicle is a criminal office in Ontario. Yes, that includes while stopped in frustrating traffic and while waiting for the traffic light to turn green.

In Ontario, "[n]o person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages."

Of course, there has been litigation about the scope and meaning of this, including what it means to be holding your mobile device in your vehicle.

Effectively, Ontario Courts have strongly affirmed a total prohibition against even holding your device in your vehicle if you are operating your vehicle at the time for any purpose.

Case in Point:

R. v. Kazemi, a 2013 criminal case decided by the Court of Appeal. It was asked to consider what it means to hold or use a handheld device in the context of operating a vehicle.

A police officer noticed a driver with her mobile device in her hand while stopped at a red light. When she was pulled over, the driver told the police officer that her cell phone had been on the seat of her car, but that it had previously dropped to the floor when she braked for the traffic light. 

The driver claimed that when the officer saw her with the cell phone in her hand, she had only been picking it up from the floor while safely stopped at a red light. 

She was charged with distracted driving.

The Court had to decide whether her actions constituted a holding or using of a hand-held wireless communication device. 

Ultimately, after several lower Court’s decisions, the Court of Appeal convicted the driver for distracted driving, holding that the driver's actions did constitute the holding of a cell phone. 

Specifically, the Court of Appeal held: "[r]oad safety is best ensured by a complete prohibition on having a cell phone in one's hand at all while driving. A complete prohibition also best focuses a driver's undivided attention on driving."

Employers – Take Note:

This has implications for employers in Ontario, too. Health and safety legislation in Ontario, such as the Occupational Health and Safety Act, requires employers to protect the health and safety of workers in their workplaces. A 'workplace' includes a vehicle used for work purposes. 

Therefore, employers need to take steps that their employees do not use or hold mobile devices in the course of employment while operating a vehicle.

Employers should have a policy governing the permitted use of hand held devices and give limitations or prohibitions on that use, particularly when driving, along with a statement that disciplinary action will be taken for violations of the policy. Employers should also make sure that employees are properly trained on the policy and reminded of it on a regular basis, like any other workplace policy.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

read more