Category Archives: News

On December 21, 2021, Raphaëlle Laframboise-Carignan presented to l’Association des juristes d’expression française de l’Ontario (AJEFO) on employment laws and policies related to COVID-19. Raphaëlle discussed the effects of these types of policies on the workplace, accommodation issues, exemption requests, and the potential consequences where employees do not comply with COVID-19 policies.

Will new pay transparency rules help to eliminate the wage gap?

[RavenLaw gratefully acknowledges the contribution of this post by articling student Kundera Provost-Yombo]

In January 2021, the Government of Canada implemented amendments to the Employment Equity Regulations that imposed disclosure obligations to on federally regulated private sector workplaces. These new measures will make salaries publicly available, and help to identify wage gaps experienced by women, indigenous people, members of visible minorities, and people with disabilities. The key question is – will this increase in pay transparency lead to any meaningful change in the wage gap?

What is the Wage Gap?

There is overwhelming evidence that women, indigenous people, members of visible minorities, and people with disabilities earn less income than workers who don’t fall into these four categories. For instance, a study conducted by Statistics Canada found that in 2018, female workers aged 25 to 54 earned on average13.3% less per hour than their male counterparts, or $0.87 for every dollar earned by men.

This wage gap generally materializes in one of three ways:

Women, indigenous people, members of visible minorities, and people with disabilities may be paid less than others for performing the exact same job.
Women, indigenous people, members of visible minorities, and people with disabilities may be paid less for work of ‘equal value’—that is, work that requires substantially the same level of skills, effort, and responsibilities than work performed by others.
Job classes traditionally dominated by women, indigenous people, members of visible minorities, and people with disabilities may be paid less than other job classes. For example, certain types of jobs traditionally performed by women (e.g. childcare) are systemically underpaid.

What do the Employment Equity Regulations do about the wage gap?

The amendments to the Employment Equity Regulations that are now in force impose pay transparency in federally regulated private sector workplaces. Employee salaries will be publicly available, with added emphasis on the existing wage gaps experienced by women, indigenous people, members of visible minorities, and people with disabilities.

Before these amendments, federal private sector employers were already required to prepare employment equity reports each year, reporting information on representation data, employee occupational groups, employee salary ranges, and the number of employees hired, promoted, and terminated.

This data was reported to the Minister of Labour, but now, under the new amendments, will also be made available to the public. The data will be published through aggregate statistics, based on occupational group and employment status. Through this aggregate data, wage gaps will be identified, for example, through the average difference in hourly wages between men and women working in an occupational group. No information that can identify individual employees will be included in the public data.

Employers of federally regulated private sector workplaces will have to meet the disclosure obligations and include aggregated wage gap statistics in their annual employment equity reports by June 2022. The first production of aggregated wage gap data is expected to be published in winter 2023, through an online application currently being developed.

Which employers must comply with the new Regulations?

The new pay transparency measures apply to employers of federally regulated private-sector workplaces. Federally regulated private-sector workplaces are defined in parts I, II, III, and IV of the Canada Labour Code, and include industries such as banks, transportation, telecommunications, postal services, and most federal Crown corporations.

What do these new rules mean for employees?

The new amendments will allow workers in the federal private sector to better understand whether they are currently experiencing wage discrimination. The wage gap is perpetuated in part because it is hidden. As a result, the pay transparency measures adopted by the Government of Canada will raise awareness about the wage gaps in federal private sector workplaces.

Using this information, workers can better advocate to eliminate the wage gap. It is difficult for workers to compel their employers to close wage gaps if they are not aware that they are being underpaid. Pay transparency will enable workers and their advocates to access more detailed data to advance the fight towards pay equity.

In theory, greater pay transparency may also encourage employers to proactively work towards pay equity in their workforces. Publicizing wage disparities may create public pressure and incentivize employers to address wage gaps within their workplaces.

Unfortunately, pay transparency alone does not necessarily lead to pay equity. It is unclear whether these new measures will meaningfully change existing wage gaps in federal private sector workplaces. It is, however, undoubtedly a step in the right direction, and will allow workers and their advocates to at least understand the scope of the problem.

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

Congratulations to David Yazbeck on his new role at PIPSC!

As many of our friends and colleagues in the labour community may already know, David Yazbeck has left private practice at RavenLaw to work within the labour movement as the Director, National Labour Relations, at PIPSC. David has a long history representing PIPSC and its members, championing human rights and whistleblower protections in numerous precedent-setting cases on the union’s behalf. This is an exciting opportunity for David to continue to pursue his life-long commitment to workers’ rights, on behalf of an important voice for labour in this country.

David leaves private practice with a legacy of historic victories at all levels of court, and a demonstrated commitment to advancing social justice issues through important pro bono work. He has litigated important cases involving racism and anti-Black racism, and his commitment to the arts, and artists, led to a Supreme Court of Canada ruling ensuring artists could meaningfully participate in collective bargaining. We will miss David’s many contributions to RavenLaw, including his vast experience litigating complex issues on behalf of workers, most notably in the areas of human rights and pay equity. It goes without saying, however, that we will miss having him as a colleague even more.

While it is difficult to lose a founding member who has done so much for the firm, we know David will continue to play an important role in the labour movement, using his energy and talents to advance the interests of workers across Canada. We wish David all the best in this next step in his career and look forward to continuing to work alongside him in the future.

Morgan Rowe Presents on Queerness and the Legal Workplace

On February 9, 2022, Morgan Rowe presented as part of a panel on “Queerness and the Legal Workplace”, hosted by OUTLaw and the University of Ottawa’s Faculty of Law. Morgan and the panel discussed common issues that LGBTQ+ lawyers and law students encounter in the legal profession and how to navigate those issues.

Dayna Steinfeld Presents on Labour Law in Manitoba

On February 7, 2022, Dayna Steinfeld presented a lecture on “Labour Lawyering in Manitoba” to the University of Manitoba’s Robson Hall law school upper-year labour law class. Dayna discussed common issues under the Manitoba Labour Relations Act that labour lawyers in the province encounter in their practice, from the perspective of a union-side labour lawyer.

RavenLaw Hosts Conference on Mental Health During COVID

On March 4, 2022, James Cameron, Kim Patenaude, and Raphaelle Laframboise-Carignan hosted a virtual conference on “Mental Health in the Time of COVID: Fostering Wellness for Yourself and Your Clients.”The conference started off with an interactive webinar by the Mental Health Commission of Canada. Our lawyers then discussed the unique details of making and dealing with disability accommodation requests and long-term disability benefits applications during COVID-19 pandemic.

Is My Non-Complete Clause Void?

By Simcha Walfish

In Fall 2021, the Government of Ontario introduced the Working for Workers Act, which included a new prohibition on non-compete clauses. The Minister of Labour provided the following rationale:

While these agreements are almost never legally enforceable, employers often use them to intimidate their workers. These agreements generally say that a worker can’t seek opportunities at other companies in the same field for a period of time after they leave their current job, and this might stop many of them pursuing exciting opportunities that would help them grow professionally. This isn’t fair to workers who are eager to advance their careers and this isn’t fair to the thousands of small start-ups we have in Ontario who are starved for talent. This change would help them find workers with the skills they need to scale up, grow and prosper.

The legislation amended the Employment Standards Act (ESA) to ban non-compete clauses, except for executives and in certain circumstances related to the sale of a business. It prohibited employers from entering into employment contracts with non-compete clauses and stipulated that those agreements are void.

Are agreements signed before October 25, 2021 void?

The ban on non-compete agreements was made effective retroactively to October 25, 2021, the day the legislation was introduced in the legislature. Early interpretations of the prohibition have therefore concluded that it only applies to agreements signed on or after October 25, 2021. The Ministry of Labour has taken the position in several publications that the new legislation “does not prohibit or void non-compete agreements that were entered into prior to October 25, 2021.”

The same conclusion was reached in Parekh et al v Schecter et al, where the Superior Court concluded that, because the Legislature specifically chose October 25, 2021, as the date for these provisions to come into force, they did not apply to agreements signed before that date.

However, there are multiple potential arguments that all non-compete clauses are now void for workers governed by the ESA.

First, the new ESA provisions themselves do not refer to an effective date of October 25, 2021. It is questionable to rely heavily on the date of coming-into-force when interpreting legislation that is meant to provide minimum standards that apply to all employees. The Legislature could have referenced an effective date in the legislation if that were its intention.

Second, the ESA is meant to provide minimum standards that apply to all employment contracts. As the employee argued in Parekh, the ESA should not be interpreted in a way that would create different rights for different employees, based on when they signed their contract.

Third, it is not unusual for rights under the ESA to change during the life of an employment contract, which can last decades. When the ESA is amended, unless the legislation provides for a transitional period, it is the current ESA that governs employment agreements, not the version of the ESA as it was in force at the time of the signing of an agreement. Workers do not need to undertake an archaeological study of their contract, to determine what version of the ESA applies to each clause.

Ultimately, as the Minister stated, even before this legislative change, non-compete clauses were rarely enforceable. Therefore, regardless of whether future decision-makers follow Parekh or take a different approach, non-compete clauses are likely to continue to be found void.

If you have questions or concerns about whether your non-compete clause is valid or any other questions about your employment, we are here to help. Please call 613–567–2901 or email info@ravenlaw.com to consult one of our experienced employment lawyers.

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

Wassim Garzouzi Publishes Chapter on Collective Bargaining in Education

Wassim Garzouzi recently published a chapter in the edited collection, Collective Bargaining in Higher Education. Wassim’s chapter addresses the myth of academic exceptionalism in organizing and collective bargaining within academia, examined through the lens of a successful organizing drive and first contract achieved by the part-time law professors at the University of Ottawa.

The chapter is available here. The interest arbitration decision referred to in the chapter can be found here.

“Draconian and Inflexible”, Arbitrator Declares ORNGE’s Drug and Alcohol Policy to be Unreasonable and Discriminatory