Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Ontario Court Decides on ESA Prohibition Against Noncompete Agreements

Precedential Decision by Judiciary or Regulatory Agency

Authors: Rhonda B. Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP

Among other things, Ontario’s Bill 27, Working for Workers Act, 2021 (Act), which became law on December 2, 2021, amends the Employment Standards Act, 2000 to prohibit current and prospective employers from entering into an employment contract or other agreement with an employee or an applicant for employment that is, or that includes, a noncompete agreement, except upon the sale of a business or if the employee is an “executive.” The Act provides that this prohibition is deemed to be in force effective October 25, 2021, but it does not indicate whether the prohibition applies to noncompete clauses entered into prior to this effective date. This question was recently answered by the Ontario Superior Court of Justice, when it held that the prohibition does not apply to noncompete agreements entered into prior to October 25, 2021.

Ontario Court of Appeal Dismisses Appeal of Decision Exceeding 24-month “High End” of Reasonable Notice for Long-term Employees

Precedential Decision by Judiciary or Regulatory Agency

Authors: Rhonda B. Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP

The Ontario Court of Appeal (OCA) recently dismissed the employer’s appeal of a lower court decision in which the trial judge held “exceptional circumstances” existed to justify making an award of 26 months’ salary in lieu of notice that exceeded the 24-month “high end” amount of reasonable notice for long-term employees. That case involved a 40-year employee whose employment was terminated when she was 58 years old, had only specialized skills that were not easily transferable, and limited computer skills. This decision was rendered despite the precedent where, in similar circumstances, the court reduced a 30-month reasonable notice award to 24 months, because such factors are already “recognized” and “rewarded” by the 24-month notice period, and they do not establish “exceptional circumstances.”

British Columbia Court Decides Surreptitious Recording of Colleagues Justifies Termination of Employment for Cause

Precedential Decision by Judiciary or Regulatory Agency

Authors: Rhonda B. Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP

The Supreme Court of British Columbia recently dismissed an employee’s wrongful dismissal claim and held that the employee’s surreptitious recording of conversations with colleagues justified the termination of his employment for just cause because, in making the recordings, the employee fundamentally ruptured the employment relationship, such that the mutual trust between the parties was broken. Factors a court may consider in conducting such an analysis may include the reason why the employee asserts they made the recordings, the period of time over which the recordings were made, the number of recordings made, the sensitivity of the information recorded, and whether the recordings were made in contravention of applicable policies.

If Enacted, Ontario’s Bill 88 Will Provide Protections and Rights for Gig Workers, Among Other Changes

Proposed Bill or Initiative

Authors: Rhonda B. Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP

Ontario’s Bill 88, Working for Workers Act, 2022, (Bill 88) was carried on First Reading on February 28, 2022, and carried at Second Reading on March 23, 2022. It is now under consideration by the Standing Committee on Social Policy. If passed in its current form, Bill 88 would come into force on the day it receives Royal Assent, and enact the new Digital Platform Workers’ Rights Act, 2022, which would establish foundational rights and protections for gig workers. Other provisions include amendments to the Employment Standards Act, 2000 (ESA), which would clarify the treatment of certain information technology and business consultants under the ESA, require employers to tell their workers if and how they are being monitored electronically, and expand reservist leave.

The bill also seeks to amend the Fair Access to Regulation Professions and Compulsory Trades Act, 2006, to require a regulated profession to make a registration decision within 30 business days of receiving an application for registration from a “domestic labor mobility applicant.” Further, the bill seeks to amend the Occupational Health and Safety Act to require employers to provide and maintain in good condition a naloxone kit in workplaces where they are aware, or ought to be aware, that there may be a risk of a worker having an opioid overdose, increase maximum fines if there is a failure to provide a safe work environment and it leads to a worker’s severe injury or death on the job, and establish the aggravating factors that should be considered upon determining penalties against corporate and individual defendants.

Canada No Longer Requires Fully Vaccinated Travelers to Provide Pre-entry COVID-19 Test Result to Enter Country

Important Action by Regulatory Agency

Authors: Rhonda B. Levy, Knowledge Management Counsel, and Monty Verlint, Partner – Littler LLP

On March 17, 2022, Canada announced that, effective April 1, 2022, fully vaccinated travelers will no longer be required to provide a pre-entry COVID-19 test result to enter Canada. Pre-entry testing requirements did not change for partially or unvaccinated travelers who are allowed to travel to Canada.