On June 2, 2022, Alison McEwen will present as a speaker during the Law Society of Ontario’s Eight-Minute Employment Lawyer. Alison will be discussing the use of hybrid work arrangements since COVID, particularly in situations involving the duty to accommodate.

For more information on this upcoming presentation or to register, please visit the event website.

Join Wassim Garzouzi, Jessica Greenwood, and Dayna Steinfeld on June 20, 2022 from 12:00 – 1:00 EDT for a virtual discussion on the Supreme Court’s decision in Northern Regional Health Authority v Horrocks.

Wassim, Jessica, and Dayna will review the decision, the potential patchwork results of the decision across the country, and will answer audience questions about how the decision will impact union representatives. Topics will include: What is the expected impact of this decision across Canada? What do unions need to know about the decision for their representation of members in health care sectors and beyond? What practical implications does Horrocks have for unions, given the Supreme Court’s conclusion that labour arbitrators have exclusive jurisdiction over issues arising under the collective agreement, including human rights complaints, unless there is clear legislative intent to the contrary? Can union members pursue individual human rights complaints and, if not, what does the duty of fair representation require from unions?

The Lunch ‘N’ Learn is free, but pre-registration is required. Please contact bkone@ravenlaw.com to register and request the Zoom link.

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.

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.

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.

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.]