RavenLaw is pleased to welcome Michael Fisher, Raphaëlle Laframboise-Carignan, Amanda Montague-Reinholdt, and Morgan Rowe into the partnership, effective January 1, 2022.
Michael, Raphaëlle, Amanda and Morgan have worked with RavenLaw for many years and have made significant contributions to the firm. We thank them for their important work in advancing union and worker rights, and congratulate them on becoming partners.
In a significant victory, the Ontario Divisional Court recently set aside a Workplace Safety Insurance Appeals Tribunal (“WSIAT”) decision and directed the WSIAT to grant benefits to the injured worker.
The Worker was injured on the job and, as a result, was no longer able to work. However, he was denied benefits by the Workplace Safety Insurance Board (“WSIB”) and the WSIAT because he waited several weeks after the accident before seeking medical care. The WSIAT found that the Worker had not proven that the workplace accident significantly contributed to his injury.
At the Divisional Court, the Worker argued that it was unreasonable for the WSIAT to discount uncontradicted medical evidence and to rely so heavily on his delay in seeking treatment. The Court agreed, finding that the WSIAT’s decision suffered “from serious logical flaws” which resulted in an “outcome [that was] unreasonable, based on the record.” It therefore set the WSIAT’s decision aside.
The Court then went one step further and held that the delay in resolving the Worker’s claim was a serious concern. The accident occurred in 2005, which meant that the Worker had been waiting over 15 years for benefits. Given the amount of time that had elapsed since the injury and the clear evidentiary record, the Court did not send the file back to the WSIAT for reconsideration. Instead, it found that the Worker was entitled to benefits for the injury. It referred the matter back to the WSIAT to assess his claim.
This is an important win for workers who are faced with unreasonable decisions from statutory tribunals such as the WSIAT. It affirms that the Divisional Court has the option, in certain cases, to direct the outcome instead of sending the issue back to the tribunal for reconsideration.
The Worker was represented by Julia Williams, Wassim Garzouzi, and Anna Rotman.
An increasing number of employers resort to providing employees with time off for the hours they work overtime, instead of paying them overtime pay. Employees may have questions about when they may receive this benefit and the rules associated with it. Here are three things you need to know regarding time off in lieu of overtime.
The Employment Standards Act provides that an employee may be compensated for the hours they work overtime by receiving one and one-half hours of paid time off work for each hour they work overtime, instead of being paid overtime pay. For most employees, this means that they can receive one and one-half hours of paid time off for each hour they work in excess of 44 hours in the work week. Some jobs have an overtime threshold that exceeds 44 hours in a work week, or do not provide for the right to overtime pay, as reported in the Guide to employment standards special rules and exemptions. This applies to every employee working in Ontario, except for employees under federal jurisdiction such as employees working for banks, telecommunication companies, transportation companies, postal services, and most federal Crown corporations.
No. Subsection 22(7)(a) of the Employment Standards Act expressly provides that time off in lieu of overtime is only allowed if both the employee and the employer agree to it. This means that an employer cannot refuse to pay overtime pay and impose time off in lieu of overtime if the employee does not agree to it.
However, this is also means that an employee cannot decide on their own to work hours in excess of the overtime threshold in hopes of receiving additional time off work. For an employee to be compensated with time off for the hours they work in excess of the overtime threshold, both the employer and the employee must agree to it.
By default, when an employee and an employer agree that an employee will be compensated with time off work for the hours they work in excess of the overtime threshold, the paid time off work must be taken within three months of the work week in which the overtime was earned. There is one exception. The paid time off work can be taken within 12 months of the work week in which the overtime was earned if the employer agrees to it.
If the employee’s job ends before they were able to take the paid time off in lieu of overtime, the employer is required to pay overtime pay to the employee for their unused banked time off. The employer must do so no later than seven days of the date on which the employee’s job ended, or on the day that would have been the employee’s next pay day.
We are here to help. If you have questions about your right to overtime pay or time off in lieu of overtime, or any other term in your employment contract, consult our experienced employment lawyers at RavenLaw LLP. Please call 613–567–2901 or email info@ravenlaw.com to consult one of our experienced employment lawyers.
[This article is for informational purposes only and is not legal advice, which cannot get given without consideration of your individual circumstances.]
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.
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.
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.
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.
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.]
RavenLaw supports liveable wages for all employees, including articling students. As employees, articling students are entitled to compensation for the valuable work they perform in law firms, organizations, and public employers across Ontario. We have written to the LSO Benchers to express our firm’s position that articling students should be provided with a liveable wage for their work and, in the alternative, no less than the bare minimum pay outlined in the Employment Standards Act. A copy of our firm’s letter is available here.
We also endorse the positions of many others calling for the protection of minimum wage for articling students by the Law Society of Ontario (“LSO”) from the following organizations and firms:
We recognize the precarious and vulnerable position of articling students. As such, regardless of the outcome of the LSO’s consultations on the issue of minimum compensation, RavenLaw LLP will be supporting articling students seeking to organize their workplace, pro bono. We invite articling students interested in unionizing to contact us at info@ravenlaw.com
On March 22, 2022, Raphaëlle Laframboise-Carignan will present as part of a speakers’ night series being held by Mood Disorders Ottawa. Raphaëlle will be discussing workplace accommodations, long-term disability (LTD) benefits, and other disability benefits available when a person cannot work due to injury or illness.
For more information on this upcoming presentation, please visit the event website.