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.

News publications have officially declared the “death of the office”, as most of us adjust to the realities of working from home. While working from home, often referred to as telework or telecommuting, had been steadily increasing in recent years, the amount of people working from home has obviously exploded in response to the COVID-19 pandemic. With unprecedented numbers of employees working from somewhere other than their employer’s physical premises, an important question arises: if you are injured while working at home, is that injury covered by workers’ compensation?

Surprisingly, given how common telework has become, the Ontario Workplace Safety and Insurance Board has not published a formal policy addressing injuries that arise while working at home. However, WSIB’s general law and policy, as well as its few cases adjudicating claims for telework injuries, confirm that an injury sustained while working at home will be treated like any other injury—all the circumstances will be considered to determine if the injury is work-related.

Ontario’s workers’ compensation legislation, the Workplace Safety and Insurance Act, only allows for compensation for accidents that occur on an employer’s premises. However, that term is defined very broadly, as “ the building, plant, or location in which the worker is entitled to be…” To be eligible for compensation, an accident must also have occurred while the worker was performing an act incidental to her work or employment obligations.

The Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) has adjudicated very few claims for injuries sustained during telework. However, in the few cases it has decided, it has effectively taken for granted that a telework injury is not excluded from the workers’ compensation regime.

The WSIAT has granted compensation to workers who were injured in their home offices. For example, in 2019 ONWSIAT 1873, a customer service worker performed her job in her home office and developed carpal tunnel syndrome due to an increased workload. The WSIAT found that the claim had the necessary five points to be eligible for compensation: “an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history.”

This is similar to the approach taken by workers’ compensation boards in other jurisdictions. Some, like WorkSafeNB in New Brunswick, and the Workers’ Compensation Board – Alberta, have published policies or fact sheets specifically addressing when a telework injury will be considered eligible for benefits.

While telework injuries clearly can be eligible for workers’ compensation, the fact that your injury occurred while working from home may, in some cases, make it more difficult to establish that the injury is work-related. There are a wide variety of situations that are on the borderline between work and personal activities. That line between your work and personal life is likely even harder to define when you are working at home.

The Workers Compensation Appeals Tribunal of British Columbia commented on this difficulty in a 2010 decision:

…work activities and home life do not always occur in a clearly defined and distinct sequence.  It might be that a worker is at one moment in the course of employment while in the home office, but at another moment in the role of homeowner when responding to a neighbor knocking at the front door.  It is where an injury occurs in the transition between work life and personal life that coverage under the Act may be at its most complex.

So, while the fact that your injury occurred while working from home does not, in itself, disqualify you from workers’ compensation coverage, you may face added challenges in your claim, particularly if the injury occurred somewhere in that “transition” between your work life and your personal life. If you have such a borderline claim, you may want to receive advice and assistance from an employment lawyer.

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

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.

Ravenlaw gratefully acknowledges the contribution of this post by summer student Emily McBain-Ashfield.

Asked to work but feeling ill? Your job is protected

As some regions in Ontario enter Phase 2 of re-opening, more people will be asked to return to work. If you are one of those people being asked to return to work, you may be wondering: what will happen to my job if I feel sick, but do not have any sick days?

Even without sick days, your employer cannot fire you for taking a leave due to COVID-19 related symptoms. You do not have to choose between following public health guidelines when you feel ill and keeping your job.

COVID-19 Related Emergency Leave Without Pay

Whether you work in a provincially or federally regulated industry, workers in Ontario have access to job-protected COVID-19 related leave.

Under the Employment Standards Act, 2000 (ESA), provincially regulated workers can take leave without pay if they are isolating because they have, or are suspected to have, COVID-19. Furthermore, employees can use this leave to care for others with suspected or confirmed COVID-19. Once you return to work, your employer must reinstate you to the same position with the same pay as before you took leave.

You do not need to provide a medical certificate to take COVID-19 related leave under the ESA. However, your employer can require evidence that you qualify for leave, as long as the request is reasonable in the circumstances and at the time of the leave. For example, as testing in Ontario becomes more accessible, asking for evidence of COVID-19 testing may become more reasonable.

Federally regulated employees also have job protected leave for up to 16 weeks under the Canada Labour Code (CLC) if they cannot work because of COVID-19. You must notify your employer as soon as possible about the leave, including the expected length of leave. You do not need a medical certificate to take COVID-19 related leave under the CLC.

Your job is further protected under the Human Rights Code

Disability is a protected ground under the Human Rights Code and your employer cannot discriminate against you because of a disability. The Ontario Human Rights Commission considers COVID-19 status as a protected ground under disability.  This means is you cannot be fired because of your COVID-19 status, up to the point of undue hardship on your employer. In addition, the need to care for ill family members engages the protected ground of family status. So, you cannot be fired for taking leave to care for a family member. Unless your employer can demonstrate that accommodating you causes undue hardship, your employer must accommodate you by either providing leave or an alternative working arrangement.

How will I afford unpaid leave?

Currently, your employer does not have to pay for sick or COVID-19 related leave. The Federal Government recently announced they are discussing with provinces the possibility of giving workers 10 paid sick days. However, access to 10 paid sick days is not going to happen overnight, and each province may respond differently.

If you need to take a COVID-19 related leave you have some options to receive support. You may be eligible to apply for the Canada Emergency Response Benefit or EI Sickness Benefits.

We are here to help you navigate workplace issues. Consult one of our experienced lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are facing difficulty in your workplace due to taking COVID-19 leave.

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

That doesn’t seem like a shocking proposition, but Uber fought up to the Supreme Court of Canada to argue Canadian courts had no jurisdiction to determine whether it had acted improperly. The Supreme Court of Canada said Uber was wrong. Now a major class action on behalf of drivers can go ahead.

Uber thought it had covered itself when it required drivers to agree that they had to make any claims by going to an arbitration in Europe, leaving them with no access to justice through Canadian courts. A strong majority decision of the Supreme Court of Canada rejected that argument and said the clause was unenforceable.

It said that the clause was unconscionable.

The Court held that the idea of going to arbitration, rather than the courts, is acceptable when it is freely negotiated between the parties.  Where unfair bargains are linked to unfair bargaining, however, the courts can protect vulnerable people in the agreements they are given to sign. The courts will look to whether one party to a deal was unable to protect their interests when the person agreed to the terms. The Supreme Court also said Canadian courts can intervene where one party is disadvantaged by terms they did not understand or appreciate. Not every standard contract can be ignored by the courts, but when they are hard to understand and lopsidedly in favour of one party, there is a good chance that some of their terms can’t be enforced.

In the Uber case, a driver would have been required to pay an up-front US$14,500 administration fee just to start the arbitration process.  For the driver in question, that was a sizeable percentage of the amount he earned in a year.  He would have to use the law of the Netherlands and was left with the impression he would have to go to Amsterdam to argue his case.  The Court found that the arbitration clause made any of the driver’s rights unenforceable in the real world.

As a result, the Court said Uber drivers can make their claims in Canadian courts. A proposed $400M claim involving the misclassification of Uber drivers can finally now proceed.

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.]

The COVID-19 pandemic gave most Canadians a renewed understanding and appreciation for the essential, life-saving work performed by healthcare professionals. However, early on in the crisis, this appreciation felt empty to many workers who were being denied access to adequate personal protective equipment (PPE) and other measures to protect themselves and their patients.

One particularly stark example led the Ontario Superior Court to take the very rare step of intervening in the midst of a labour dispute, and ordering a group of employers to ensure that nurses had access to adequate PPE and other protective measures.

Background

At the height of the spread of the coronavirus in Canada, the Ontario Nurses Association presented grievances against four employers operating long-term care homes. The union maintained that these employers had violated the Collective Agreements, as well as health and safety legislation and public health directives, by withholding PPE from nurses and failing to implement necessary controls to prevent the spread of COVID-19 among residents and staff.

Because of the length of time it would take for those grievances to reach arbitration, the union also applied for an injunction in the Ontario Superior Court, seeking urgent relief while the grievances remained pending. The union asked for an Order that the employers allow nurses to make PPE decisions on an ongoing basis at the point of care, and that they isolate and cohort residents and the staff attending to them so that those who were infectious were kept separate from and treated by different nurses than those who were not. The Court heard the injunction request on April 22, and released its decision the following day.

Injunction decision

The Court’s decision paints a very grim picture of what was occurring in the long-term care homes. All four had experienced COVID-19 outbreaks, with over a hundred residents infected and more than fifty deaths. At least seven nurses had also contracted COVID-19, with one requiring hospitalization.

Despite this dire situation, the evidence before the Court was that nurses were being denied access to PPE, including N95 masks, on the grounds that they were scarce and needed to be conserved. This was clearly contrary to public health directives, which stated that, if a health care worker determines at point of care that N95 masks are necessary, they must be provided. The homes were also not isolating and cohorting infected residents and were allowing infected and non-infected residents to be cared for by the same nurses.

At the injunction hearing, the employers conceded that two of the three elements of the test for an injunction were satisfied—there was a serious issue to be tried in the underlying grievances, and there was a risk of irreparable harm if an injunction was not granted. They argued, however, that the balance of convenience favoured dismissing the application, because the risk to the nurses had to be balanced against the risks to all other staff and residents. The employers essentially argued that the nurses were trying to secure PPE for themselves to protect their own self-interest, at the expense of others.

The Court was unimpressed, to say the least, with this argument:

“I can imagine that the irony of that submission is not lost on the Applicants. One need only read the affidavits of the individual nurses in this Application record to understand that they spend their working days, in particular during the current emergency situation, sacrificing their personal interests to those of the people under their care. And given the nature of the pandemic, they do this not only for the immediate benefit of their patients but for the benefit of society at large. To suggest that their quest for the masks, protective gear, and cohorting that they view as crucial to the lives and health of themselves and their patients represents a narrow, private interest seems to sorely miss the mark.”

The Court concluded: “Where the lives of nurses and patients are placed at risk, the balance of convenience favours those measures that give primacy to the health and safety of medical personnel and those that they treat.” The Court ordered that the employers comply with the public health directives, including providing nurses with access to fitted N95 facial respirators and other appropriate PPE when assessed by a nurse at point of care to be appropriate and required.

Extraordinary measures for extraordinary times

An injunction is a very unusual legal remedy, and the injunction in this case was particularly unusual. The fact that the Court felt compelled to intervene in the middle of a labour dispute—something it is generally reluctant to do—and order the employers to take active steps to protect staff and residents is a reflection of what exceptional times were are currently living in.

It is also a testament to the seriousness of COVID-19 and the importance of frontline workers during the unprecedented crisis that virus has caused. On that topic, two important points are worth noting.

First, the nurses who sought this injunction, as well as other public sector workers in Ontario, are all currently subject to Bill 124, legislation that caps increases to pay and benefits to a total of 1% per year for a period of three years. The Ontario government has disingenuously claimed it is unable to intervene and override this cap. However, in addition to obviously having the power to repeal the legislation, Bill 124 authorizes the government to exempt any collective agreement from the cap. Given the consensus that healthcare workers are nothing short of heroes in the current context, the government should clearly grant exemptions and allow these workers to be paid what they deserve.

Second, the Ontario government recently announced that it will allow agricultural workers to continue working even if they test positive for COVID-19, provided they are asymptomatic. Like the situation the nurses faced in these long-term care homes, this decision appears to be clearly guided by societal, economic considerations, rather than the best interests of the workers. The agricultural workers and their advocates may want to explore whether similar extraordinary legal action is appropriate to protect themselves, and the Ontario government should heed the lesson from the Court’s decision in the ONA case—the broader public good cannot come at the expense of the health and safety of 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.]

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.]

Many workers have had their vacation plans put on hold by the COVID-19 pandemic, but still have vacation time to use. Here are the answers to some of the most frequently asked questions about taking vacations with pay.

How much vacation does my employer have to give me?

Your employment contract and any applicable employer policies may outline your vacation entitlements. If you’re a unionized worker, check your collective agreement.

In Ontario, the Employment Standards Act sets the bare minimum terms and conditions of employment for most workers. It guarantees an employee who has worked for an employer for less than five years at least two weeks of paid vacation after each year of employment. An employee who has worked for an employer for more than five years is guaranteed at least three weeks of paid vacation a year. These are minimums. An employer may provide more vacation to its employees, and some employees, including those represented by a trade union, may be able to negotiate greater vacation entitlements.

Some Ontario workers are exempt from this and other parts of the Employment Standards Act. The list includes lawyers, registered massage therapists and commissioned salespersons as well as workers employed in commercial fishing and on most farms. If you are one of these workers, your vacation entitlement is subject only to negotiation with the employer.

Other Ontario workers are employed by federally regulated employers such as banks, telecommunications companies and First Nations band councils. For these workers, the Canada Labour Code guarantees similar entitlements as the Ontario legislation, except that the federal legislation additionally entitles employees with 10 or more years of service to at least four weeks of vacation with pay.

What if I’ve been on leave because of COVID-19?

Some workers are eligible for infectious disease emergency leave under the Employment Standards Act or leave related to COVID-19 under Canada Labour Code as a result of the coronavirus pandemic. Workers can postpone their vacations until after the end of this leave, even if they were required to have taken it within the duration of the leave.

Is it the same for other types of leaves, too?

Yes. The Employment Standards Act entitles employees to various unpaid leaves of absence like pregnancy and parental leave, family responsibility leave and sick leave. Federally regulated employees are guaranteed similar entitlements under the Canada Labour Code, in addition to leave that enables Métis, Inuit and First Nations workers to engage traditional practices including hunting, fishing and harvesting.

Workers can defer their vacation during any such leaves. An employer cannot force employees to take vacation instead of any other leave entitlements.

I’m working from home. Can I wait until my office reopens to schedule vacation?

That may be up to your employer. An employer has the right to determine when any of its employees take vacation, unless an employee’s contract of employment or collective agreement says otherwise.

The only limit on this discretion is that employer’s must allow employees to take their vacation within ten months after the year in which it was earned.

You also cannot be forced to split up your vacation. An employer has to assign vacation in a single period of at least one week, under the Employment Standards Act, unless the employee agrees otherwise. The Canada Labour Code requires employer to approve vacation in a single period unless the employee asks to take it in more than one period.

If work has slowed down because of the coronavirus, employers may want employees to use up vacation while lockdown measures are in place. That said, an employer will typically attempt to agree with their employees when their vacation will be scheduled. In unionized workplaces, vacation may be scheduled on the basis of seniority.

What if I travel for vacation this summer?

You may want to stick close to home due to the COVID-19 public health precautions, even if lockdown restrictions are easing up in some places. The Ontario government is still advising residents to stay at home as much as possible and practice physical distancing to limit the spread of COVID-19. Anyone who may have been exposed to COVID-19 is advised to get tested and self-isolate for at least 14 days. The federal government is advising that we avoid all non-essential travel outside of Canada. It is presently mandatory for all travellers entering Canada to isolate or quarantine themselves for 14 days to limit the spread of COVD-19.

 If I don’t use it, can I lose it?

Your employment contract may limit the amount of vacation with pay you can carry over from one year to the next. If that is the case, then you may be required to forfeit any unused vacation entitlements beyond the minimum guarantees in the Employment Standards Act or Canada Labour Code. An employer can never deprive employees of these minimum statutory entitlements.

When do I get my vacation pay?

Vacation pay is due at the start of your vacation or the next regular pay day, although in some cases Ontario employers will pay their employees the vacation pay that has accrued in each pay period. Workers entitled to two weeks’ vacation must receive vacation pay of at least 4% of their gross wages in the prior year. Workers entitled to three weeks’ vacation must receive at least 6% of their gross wages in the prior year. Federally regulated employees entitled to four weeks of vacation with pay must receive at least 8% of their gross wages in the prior year.

If I don’t take vacation, do I still get vacation pay?

 Vacation pay accrues on wages earned as soon as you start working. The employer holds onto it until you take vacation. You can agree to forego vacation, if the Director of Employment Standards approves, but your employer cannot forego paying your vacation pay. But, really, you should take your vacation.

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