We are now months into the COVID-19 pandemic, and it can feel at times like we are living in a completely different world. One can wonder whether life will ever be the same.

It appears, however, there are some things that never change—as Foodora couriers in Canada learned recently, one of those things is the lengths to which some employers will go to avoid a union drive. Foodora has unceremoniously fled the country, rather than face the prospect of collective bargaining.

Foodora and the Canadian Union of Postal Workers

Foodora and the Canadian Union of Postal Workers (CUPW) had been engaged in a long battle over CUPW’s application for certification as bargaining agent of the food delivery app’s couriers in Canada. The union scored a historic victory in that battle in February of this year, when the Ontario Labour Relations Board ruled that the couriers were dependent contractors for the purposes of the Labour Relations Act, and were therefore able to access the collective bargaining regime under that legislation.

Two months later, Foodora announced that it was closing all operations in Canada effective May 11, 2020, shortly after which it filed for bankruptcy protection. To justify its decision, the company pointed to economic reasons and the supposed saturation of the Canadian food delivery app market. The suspicious timing of Foodora’s move was lost on absolutely no one, however, and its claims of economic hardship were particularly unconvincing, since the food delivery business has exploded during the pandemic.

Foodora’s History of Shutting Down

If there were any doubt about Foodora’s true motivations, the company has a history of shutting down in the face of a legal challenge to its misclassification of employees. In Australia, like in Canada, Foodora attempted to characterize its couriers as independent contractors. When Australia’s Fair Work ombudsman challenged that classification, Foodora fled the jurisdiction.

CUPW has, unsurprisingly, filed an unfair labour practice complaint, arguing that the decision to shut down was motivated at least in part by a desire to avoid unionization. Unfortunately, though, even if this complaint is successful, the union and its members can only hope to receive some monetary compensation. Although CUPW has asked for reinstatement of employees in its complaint, the labour board likely cannot order Foodora to restore its Canadian operations, a remedy it has declined to grant in the past.

Lessons to be Learned

What are the lessons to be learned from the Foodora unionization drive, and its abrupt end? Some have argued, with good reason, that this case exposes the obvious flaws in our labour relations regime. The odds are stacked against unions and their members, particularly in certain sectors like the ‘gig’ economy, making it virtually impossible to successfully unionize. As a result, the legislature needs to seriously consider alternate modes of organizing and bargaining, so that workers like the Foodora couriers are not left behind. (See here for an interesting paper on organizing gig economy workers, published by the ILO.)

Another important takeaway from this case is that we need better oversight of businesses that improperly classify employees as independent contractors. The protections under the Labour Relations Act, as well as minimum standards under the Employment Standards Act, are afforded to “employees”, which, in the case of the Labour Relations Act, expressly includes “dependent contractors”. To avoid these protections, many companies characterize workers as independent contractors in their written contracts, or simply treat them as such, even when the relationship clearly meets the definition of an employment relationship.

Indeed, Foodora appears to be an example of a business whose success depends upon misclassifying its employees. The company’s hasty withdrawal from Canada following the Ontario Labour Relations Board’s ruling suggests that this ending to the Foodora story was, therefore, inevitable. If a company can only turn a profit by evading employment standards protections for its workers, it arguably should not be operating at all.

Employee Misclassification

This result, however inevitable, came at considerable expense to Foodora’s couriers and their union. The onus should not be on them to engage in a months-long legal battle to confirm their proper classification as employees. Employee misclassification appears to be rampant in the ‘gig’ economy, and so the time has long since past for the government to take a more proactive role in scrutinizing these businesses, to ensure that minimum employment standards are being met. Only significant oversight and serious penalties will stop other employers in the gig economy from using misclassification to their advantage.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

It’s not unusual for Long Term Disability (LTD) benefits to be denied, and there are various reasons why this may happen. Below are the top five reasons why Long Term Disability benefits are denied to those who are either mentally or physically unable to work.

1. Insufficient medical evidence

LTD denials by the insurance company can happen at the beginning of the application process because the applicant or the applicant’s doctor filled out the required forms incorrectly or inadequately. Despite the fact that you and your doctor have filled out the required forms and provided access to your medical file, the insurance company may deny your LTD benefit because the medical documents do not support your claim. Unfortunately, the insurance company is unlikely to explain why or where the documents are lacking. 

From our experience, doctors often fail to explain in enough detail why the patient’s symptoms are a barrier to performing the duties of their existing job or some alternative employment. It is advised that both you, as the applicant, and your physician clearly outline why you cannot work and explain how your medical condition prevents you from working. This will include such information as the frequency and intensity of the medical symptoms. 

If you are denied because the medical documents do not support your claim, you will have the opportunity to provide more information to the insurer. With the support of your family doctor or other treating physician, you can provide additional evidence to support your claim. The insurance company will typically give more weight to the opinion of a specialist than a family physician. You can also get the assistance of an LTD lawyer to complete the required forms. 

If you are turned down a second time, you will likely have to initiate an appeal process and sue the insurer.

2. You do not meet the policy’s definition of total disability

Each LTD insurance policy defines what it means to be “totally disabled.” At first glance, it might seem like an insurmountable threshold to attain but usually, in the first two years, it means that a person is unable to perform the usual duties and responsibilities of their own occupation. 

If you are unable to do your job, make sure to indicate total disability on the form. If you answer on the form that you do not meet the definition of total disability, the insurance company will interpret your response as an agreement you are able to work. 

If you have filled out the form incorrectly, but your treating physician’s opinion is that you cannot work, you can contest the denial of benefits.

3. You can work in another occupation

After two years, the definition of “total disability” often changes, and the insurance company takes the position that an individual is disabled only if they cannot work in any occupation. It is at this time that many individuals who are in receipt of LTD benefits are cut off If your physician continues to advise that you cannot work in any occupation, you can use that as evidence that you should continue to receive benefits. If the insurance company rejects that medical opinion, you can contest the decision to deny your LTD benefits. 

4. You have an excluded or pre-existing medical condition

Some insurance policies may exclude certain conditions, deny coverage for pre-existing medical conditions, or have a waiting period for claims due to a pre-existing medical condition. It is important to review the policy to see if and when you are covered for pre-existing medical conditions. If you are denied coverage due to a non-disclosed pre-existing condition,  depending on the context it may be worthwhile to initiate an appeal.

5. Lack of objective medical evidence

Individuals with invisible disabilities such as mental health conditions, fibromyalgia, chronic pain, and chronic fatigue syndrome are often denied due to a lack of so-called objective medical evidence. These diagnoses are often based on self-reported symptoms and their effect on daily living. Insurance companies often deny these claims because there is no official test or diagnostic image to confirm the existence of the illness or disease. Despite the lack of an official test or diagnostic, a denial of LTD benefits in these circumstances can be contested.

If any of the above reasons are cited in the decision to deny or stop paying your LTD benefits, we strongly recommend you contact a lawyer in order to discuss the next steps.

Note: This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]

Men who grew a beard during the pandemic while working from home or out of work may be asked to shave it off when they re-enter the workplace. Whether your boss can force you to shave your facial hair depends on the type of work you do, your personal circumstances, and, in many instances, whether you are unionized.

Is your employer concerned about safety or appearance?

Employers have policies against facial hair for different reasons. One is for health and safety. An employer is required by law — in Ontario, the Occupational Health and Safety Act — to protect workers from harm, including from exposure to respiratory hazards like fumes, gases or biological contaminants. Some job duties require workers to use a respirator that only fits properly if the person wearing it is clean shaven. Performing these duties safely requires a clean shave.

On the other hand, some employers are simply concerned about appearance. They may have a dress code or grooming policy that prohibits beards or other styles of facial hair for the sake of its business image. A worker’s performance is no different with or without the beard.

In either case, men who experimented with facial hair during the coronavirus lockdown may have little choice but to shave if they want to keep their job.

Do you have a right to facial hair?

Facial hair can engage a worker’s human rights, in certain circumstances. Human rights law — in Ontario, the Human Rights Code — prohibits discrimination on certain listed grounds that include a person’s creed or religion, disability, sex and gender expression.

Facial hair can be protected on the basis of creed or religion. A worker whose beard represents a sincerely held religious belief, such as that held by members of the Sikh faith, is entitled to accommodation by their employer unless it would cause the employer undue hardship. A legitimate safety concern, where employees would be endangered if a bearded person is allowed to work without a properly fitted respirator, is an example of undue hardship. The factors for determining undue hardship, in addition to health and safety, depend on the circumstances of each case. It is well-established, however,  that it is discriminatory for an employer to refuse to hire a person who wears a beard for religious reasons because the employer believes its clients would prefer clean-shaven employees.

The term creed in the Ontario Code may be broad enough to include protection of deeply held non-religious belief system, but there are so far no cases involving facial hair as a practice associated with one.

Facial hair can also be protected on the basis of disability. A worker with proven medical restrictions, which could possibly include a dermatological condition that is irritated by shaving, is also entitled to accommodation to the point of undue hardship on the basis of disability. An employer is not entitled to ask for a diagnosis but can expect to receive enough information from a medical practitioner to fulfill its duty to accommodate the employee’s restrictions.

Otherwise the decision to grow a particular type of facial hair has not been found to be a protected right on the basis of sex or gender expression, the Human Rights Tribunal of Ontario ruled in Browne v Sudbury Integrated Nickel Operations. In that case, the worker, who grew a moustache and goatee to support the “Movember movement,” argued that his employer’s “clean shaven policy,” which only permitted a moustache and soul patch for safety reasons relating to mask-fitting, was discriminatory. But according to the Tribunal, “wearing a beard or other facial hair is a matter of style or grooming, and is not a matter of sufficient social significance to warrant protection under human rights legislation” on the basis of sex.

It was also not protected on the basis of gender expression or gender identity. These grounds were added to the Code to address a perceived gap in the rights of transgender and gender non-conforming persons, not to protect the right of cisgender men to grow beards. The Tribunal found nothing to indicate “bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression.”

It would remain open to transgender or gender non-conforming persons to seek accommodation for the wearing of facial hair on the basis of gender expression and gender identity, if an employer’s policy impeded grooming according to their expressed gender.

Human rights can be a complex area of law that turns on the unique aspects of each case. Workers who have questions about their workplace rights should speak to a lawyer or access community resources, like the Ontario Human Rights Legal Support Centre.

Is your workplace unionized?

Unionized workers have a greater ability to challenge employer policies than non-union workers. Their terms and conditions of employment are governed by a collective agreement that entitles the union to present grievances concerning workplace disputes to be heard by a labour arbitrator. The union generally has the power to challenge the reasonableness of employer policies, including grooming policies that restrict styles of facial hair.

In deciding whether a policy is reasonable, an arbitrator will consider if the employer has a legitimate business interest that justifies interfering with the right of employees to express themselves through their personal appearance. There are many arbitral cases dealing with dress codes and grooming standards.

In one case, Waterloo Regional Police Services Board (1999), 85 LAC (4th) 227, the arbitrator found there was no legitimate rationale for the police service to prohibit men from wearing beards on duty, except for religious or medical reasons. The employer was unable to produce any objective evidence that a beard was inconsistent with the image the employer wished to project. The arbitrator noted that it would be reasonable for the employer to regulate the appearance and maintenance of beards but was unable to justify banning them outright.

In another, Zehrs Markets Inc. (2003), 116 LAC (4th) 216, the arbitrator found that the employer’s policy that the required the grievors to shave their goatees or wear beard nets was unreasonable. There was no evidence that the goatees cause any health and safety issues, like food contamination, or that the absence of beard nets over facial hair affected the grocery store’s image with customers.

In other cases, such as Ottawa Hospital v Canadian Union of Public Employees, Local 4000, 2013 CanLII 643, arbitrators have similarly found that employer bans on facial piercings and clothing that exposed tattoos were unreasonable as they served no legitimate employer interests.

Workers should contact their union representatives if they have any questions about their employer’s grooming policies.

A federal employer is required to appoint a competent person to investigate a workplace violence complaint, even if it believes the allegations in the complaint do not relate to or amount to workplace violence, according to a recent decision the Occupational Health and Safety Tribunal of Canada.

In this case, the worker had suffered through an accommodation process that he felt was inadequate. He believed that representatives of the employer, the Canada Food Inspection Agency, were deliberately holding up the process and interfering with accommodations granted to him in order to cause him harm. He also made general claims about bullying and harassment and alleged that employer representatives had raised their voices with him.

After meeting with the worker, the employer concluded that his complaint was not actually about workplace violence and decided not to appoint a competent person. Before the Tribunal, it argued that the employer could exercise a screening function and did not have to appoint an independent investigator to look into workplace violence claims that it felt were obviously unsupportable.

The Tribunal rejected this argument and confirmed that the employer’s role in a workplace violence process is limited to trying to facilitate a resolution of the complaint. Where that is not possible, the appointment of a competent person is required unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence.

In the case before it, the Tribunal noted that it was enough that the worker’s complaints themselves explicitly referred to “workplace violence”. This language made it clear that the complaints “related to” workplace violence. The Tribunal also concluded that it was not plain and obvious that no finding of violence could ever be made if the worker’s allegations were investigated. The employer was therefore required to appoint an investigator.

This decision is further confirmation that the employer’s role in a workplace violence complaint is limited to attempting to facilitate resolution. The employer does not have any screening function and cannot examine the factual allegations in the complaint to determine if they can be proven. If the complaint cannot be resolved at an early stage, a competent, independent investigator must be appointed.

The Public Service Alliance of Canada was represented by Jessica Greenwood, with assistance from Zachary Rodgers.

If you’ve settled, or are in the process of settling, a legal case against your employer, you may have been asked to agree to what lawyers call a “non-disparagement clause”. These clauses come in many different forms but at their core, they all ask the individual employee to agree, going forward, not to “disparage” their employer or former employer. In fact, some go further and also prohibit individuals from disparaging other employees who are also employed by the employer.

But what does a non-disparagement clause actually mean, and what does an employee give up by agreeing to one?

What is Disparagement?

On their face, non-disparagement clauses look severe. “To disparage” means to criticize or belittle someone or something or to represent them as being of little worth. Put simply, it means saying, doing, or writing something about someone that could cause a third-party to view that person in a negative way.

Disparagement is a lower standard than defamation. While defamation requires someone to have said something false and damaging, disparagement can also capture something that is true but still damaging.

Non-disparagement clauses can also apply to indirect actions, such as where an individual who has signed a non-disparagement agreement encourages someone else to make disparaging statements. Even statements made in later lawsuits have, in some cases, been found to be a breach of a prior non-disparagement agreement (see e.g. Antoncic v Ontario (Community Safety and Correctional Services)).

Limitations on Non-Disparagement Clauses

There are limits to non-disparagement clauses, however. An obvious but important limit is that non-disparagement clauses do not cover statements made before the clause was agreed to. This can be particularly important when the clause is agreed to as part of a settlement at the end of a long, combative legal fight, where both parties have likely already made negative statements about each other.

Another key limitation is that purely factual statements have often been found not to equal disparagement. For example, in Ibrahim v Hilton Toronto Hotel, the Human Rights Tribunal of Ontario found that a statement that an employee “lost his [human rights] case and did not receive a penny” was an incorrect summary of what had happened in the employee’s case but did not actually disparage the employee.

Other similar decisions have found that simply saying that a case was settled or that one person had sued another does not amount to disparagement. These decisions indicate that, where statements are factual and do not inherently imply anything negative about a party, they do not result in the breach of a non-disparagement clause.

The Cost of a Breach

Even though there are limits, once you agree to a non-disparagement clause, it is important to be careful to avoid violating that agreement. If a clause is breached, a decision-maker will often have the power to enforce the non-disparagement clause and award a remedy to the other party for the breach.

Many non-disparagement clauses will identify a specific penalty for a violation, such as returning any money that has been paid to you as part of the settlement.

Where no specific penalty is identified or where no money has been paid, a decision-maker will typically award general damages for the harm caused by the breach. The amount of damages will be determined on a case-by-case basis and will depend on the level of harm caused to the opposing party. In cases where no real harm has been caused, decision-makers have still awarded damages for the breach of the settlement agreement itself.

Conclusion

Although there are limits on what qualifies as “disparagement”, employees should think carefully when deciding whether to agree to a non-disparagement provision in a settlement. While these clauses will not harm employees in many cases, they will impact what employees can say about their employers or former employers, and it is important to fully understand that impact before signing off.

Where possible, employees should consider getting legal advice before agreeing to a non-disparagement clause or before taking any steps that they are worried might breach an existing clause. An employment lawyer may be able to help you negotiate different language for a non-disparagement provision or guide you on how to avoid an unintended breach.

An employer must reimburse employee relocation expenses if it does not have specific evidence that it could have staffed a vacant position through other means, according to a recent Federal Public Sector Labour Relations and Employment Board decision.

The decision dealt with two grievances filed by Border Services Officers with the Canada Border Services Agency. Both employees had requested to move to a new city in order to fill a vacant position. Under the NJC Relocation Directive, employees who request a move to fill a vacant position are entitled to reimbursement for a wide range of relocation expenses, unless the employer can establish that it could have filled the vacant position without relocation expenses.

In both cases before the Board, the employer alleged that it could have filled the vacancies in issue with a freshly-trained recruit. At hearing, however, the employer’s witnesses testified that there were more vacancies than available recruits at the time of the grievances and that they had no way of knowing if the vacancies in issue would have, in fact, been filled if the grievors had not relocated.

The Board found that this evidence was insufficient to meet the employer’s obligation to prove that it could have filled the vacant positions without relocation expenses. As the Board concluded, the employer’s assertion that it could have filled the vacancies “must not be a hollow statement; there must be some facts behind it to back it up.” The Board therefore ordered that CBSA reimburse both grievors for their eligible relocation expenses, as the employer’s reason for refusing to do so was “without factual underpinning.”

The grievors and the Public Service Alliance of Canada were represented by Morgan Rowe.

On May 29, 2020, Ontario made new regulations under the Employment Standards Act, 2000 to address the legal effects of widespread layoffs. These layoffs arose both from employers having a lack of business and the need of many to take time off work due either to the direct or downstream effects of COVID-19 and the measures taken to lessen the spread of the coronavirus.

The Employment Standards Act, 2000 already allowed for emergency leave for employees who were infected, under mandated isolation, or caring for a close family member. The new regulations primarily provide new rights to employers who lay off employees due to coronavirus.

The regulations allow employers to avoid the  temporary layoff provisions of the Employment Standards Act which convert a temporary layoff into a termination of employment after a certain time period has elapsed. The regulations provide relief from employers by converting the temporary layoff into infectious disease emergency leave as opposed to a termination. The regulations also allow employers to stop contributing to employee benefit plans while employees are on infectious disease emergency leave.

The regulations were released on May 29, 2020, meaning that employers who laid off employees in early March will be exempt from the application of the 13-week and 35-week thresholds required for a layoff to be deemed a termination of employment.  They also deem any complaints that were filed with the Ministry of Labour alleging termination or severance of employment due to a reduction in hours caused by COVID-19 not to have been filed.

How do these new regulations affect my rights?

These new regulations primarily affect your ability to assert that your employer has constructively dismissed you by reducing your hours or not allowing you to work for an extended period of time due to COVID-19. The regulations are fairly clear that such a claim cannot be asserted against your employer with the Ministry of Labour Training and Skills Development Employment Standards Branch.

These regulations risk severely curtailing the remedies available to the some of the province’s most vulnerable workers who may face practical challenges to accessing court-ordered common-law remedies.

However, these regulations appear to only affect the Employment Standards Act, 2000, and not the common law which also provides entitlements for employees in certain situations. As a general rule, the Employment Standards Act, 2000 does not affect an employee’s ability to bring a common law claim against their employer. You may still be able to assert a constructive wrongful dismissal claim at common law if you have been laid off work or if there has been a reduction in your hours (to learn more about what you could claim, see What is Reasonable Notice?). In Popescu v Wittman Canada Inc the Ontario Superior Court confirmed that a constructive dismissal can occur despite the preconditions for constructive dismissal under the Employment Standards Act, 2000 not having been met, meaning it does not have to be a constructive dismissal under the Act to be a constructive dismissal at common law.

These new regulations may also influence the interpretation of existing employment contracts. It is possible that common-law courts will develop their own doctrines to deal with the impact of COVID-19 on employment contracts. Your ability to assert a constructive dismissal will depend heavily on the terms of your employment contract and your individual circumstances. You should seek legal advice before deciding what to do.  

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Many individuals have long term disability (LTD) benefit coverage through their employer.  These are group policies that apply to all employees in the workplace.  A group policy is a legal contract often containing technical language which may be difficult to understand.  Insurance companies will use this technical language when denying or terminating long term disability benefits.  We have identified some of the commonly used terms and have attempted to demystify them here for you.  It is always important to remember, however, that this does not replace legal advice and if you have any questions about your policy or specific situation, you should contact an experienced long-term disability lawyer.

Qualifying Period

This is the amount of time an individual must be an employee before he or she can make a claim for LTD benefits.  The qualifying period can vary depending on the policy.

Elimination Period

This is the amount of time an individual must wait between the first day he or she is unable to work due to disability, usually the first day of sick leave, and the first day they are eligible to receive LTD benefits.  The elimination period can vary depending on the policy.  Individuals who do not have access to paid sick leave or short term disability benefits can apply for EI Sickness Benefits.

Total Disability or Totally Disabled

In order to qualify for LTD benefits, an individual must meet the definition of total disability in the contract.  It does not mean that an individual must be absolutely physically or mentally incapable of doing anything related to her or his own occupation. At the outset, being totally disabled generally means that an individual is unable to perform the regular duties of her or his own occupation.   In the majority of LTD group insurance policies, the definition of total disability changes 24 months after the end of the elimination period.  At this point, in order to continue receiving LTD benefits, an individual must be unable to perform the duties of any occupation.

Own Occupation

This is the work an individual performs at the time she or he becomes disabled. The insurance company does not look at the specific job, but the occupation in general. If the insurance policy defines total disability as being unable to perform the regular duties of your own occupation, an individual is not required to find employment in a different field even if she or he can perform other tasks that are not related to her or his own occupation.  For example, a dentist would not be required to work as a clerk even if she or he can sit at a desk and use a computer.

Any Occupation

As mentioned above, most insurance policies provide a change in the definition of total disability 24 months after the end of the elimination period.  In order to continue to receive LTD benefits, an individual will be required to show that she or he is unable to perform the regular duties of any occupation.  It will be important to refer to the terms of the insurance policy as any occupation may be further defined with additional language.  Often policies will refer to any occupation for which an individual is reasonably qualified based on education, training or experience, or any occupation for which an individual may reasonably become qualified by education, training or experience.  At this point, an individual may no longer qualify for LTD benefits if she or he can perform duties of another position for which they are qualified or can become qualified. For example, if the dentist could no longer physically work as a dentist, he or she may be qualified and able to teach courses.

If you are unable to work and are applying for LTD benefits or if your benefits have been denied or have been terminated, please contact an experienced long-term disability lawyer for advice.

We are here to help navigate the LTD application process. Consult one of our experienced disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish

Paramedics working for Oneida Nation of the Thames EMS will not be subject to Ontario’s strict caps for increases in salary and compensation. In a recent arbitration for the Union’s first collective agreement, arbitrator John McNamee ruled that the paramedics employed by Oneida Nation of the Thames EMS are not subject to Bill 124, Ontario’s public sector wage restraint legislation. Had they been subject to Bill 124, it would have resulted in the Oneida Nation of the Thames EMS workers being paid less than other paramedics. The arbitrator reasoned that paying paramedics working in an Indigenous community less than other Ontario paramedics would be discriminatory.

Bill 124 became law in Ontario in November 2019 and imposed caps of 1% on increases—a rate lower than inflation—to compensation for a wide range of public sector workers. A coalition of unions is challenging the legislation in court. Bill 124 exempts Indigenous communities and employers controlled by Indigenous communities from the legislation. This was the first reported decision on the exemptions for Indigenous communities, as the paramedics at Oneida Nation of the Thames EMS sought increases of over 1%.

The EMS is fully funded by the province through an agreement between the Government of Ontario and the Oneida Nation. The EMS operates on the Oneida Settlement, land purchased by a group of Oneida who moved to Ontario from New York State in the 1840s. The Oneida Nation of the Thames has 2172 residents and 6270 members. Because the land was purchased by the Oneida and not “reserved” by the government, it is not a reserve. However, it has been treated by the Canadian government as a reserve.

The employer argued that Bill 124 applied because the Oneida Nation of the Thames EMS is a distinct entity that employs the paramedics; they are not employed by the Oneida Nation itself. It further argued that the ambulance service is not, itself, an Indigenous community and so it should be subject to the legislation.

The arbitrator rejected the employer’s argument. He found that, with the “extremely broad” definition of Indigenous employers and the fact that majority of the EMS’ members are chosen by the Oneida Nation, the legislation clearly did not apply. Further, he reasoned that this situation was exactly what the exemption was created for—that is, services funded by Ontario but carried on by an Indigenous community.

The arbitrator accepted that Ontario’s financial condition is “not at all healthy” but did not believe that this, nor the stresses of COVID-19, meant giving a reasonable award to these 18 employees, would “strain the government’s finances to the breaking point.” While COVID-19 did “immeasurably” worsen Ontario’s financial condition, he added that it also poses serious health hazards to the employees as paramedics.

The arbitrator took notice of the social context of the collective agreement, that Indigenous peoples have “not been well-served by the country as a whole, and have struggled to maintain their identity and culture in a society which has, by and large, treated them as irrelevant.” For this reason, creating EMS services by and for Indigenous people, staffed mostly by Indigenous people, is clearly a good thing. Further, any idea that employees of Indigenous communities should be paid less than EMS employees that work elsewhere is “in and of itself, discriminatory.”

As the fight against Bill 124 goes through the courts, this decision is an encouraging sign that arbitrators will not take a narrow approach to the exemptions. It is also a strong statement on the necessity for pay equity for Indigenous workers.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

In a decision released June 17, 2020, the Ontario Court of Appeal has ruled that if any element of a termination provision in an employment contract runs afoul of the Employment Standards Act, the whole termination provision is invalid.

In Waksdale v. Swegon North America Inc. the Plaintiff sued his employer after he was dismissed with two weeks’ pay in lieu of notice following eight months of service. The Plaintiff’s employment contract had a termination with notice provision, and also had a termination for cause provision. On a summary judgement motion, the Defendant Employer conceded that the termination for cause provision violated the Employment Standards Act and was invalid, but argued that it was separate from the termination with notice provision that the employer was relying on in the case. The employer also relied on a severability clause contained in the agreement.

The motions judge found that the two provisions were sufficiently separate that the termination-for-cause provision did not cause the termination with notice provision to be invalid despite its violation of the Employment Standards Act.

The Court of Appeal overturned that finding. The Court found that an employment agreement must be interpreted as a whole. The fact that two termination clauses are contained in different paragraphs in the contract, or under different subheadings, does not affect the interpretation of the contract. The termination provisions must be read as a whole if the policy goal of discouraging employers from drafting contracts that violate the Act is to be met. Additionally, the Court of Appeal found that the employer could not rely on a severability provision to cure otherwise illegal contract clauses.

This decision clarifies a somewhat unsettled area of the law of wrongful dismissal. It reaffirms the principle that a termination provision in an employment contract may be invalidated if any termination situation would result in the employee receiving less than they are entitled to under the Employment Standards Act.

The Court of Appeal’s decision also serves as an important reminder that employment contracts will not be enforced where they violate the basic protections in the Act. If you have been terminated, you should seek legal advice and not rely solely on the words in your employment contract.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]