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Government Proposes Several Changes to Provincial Employment Legislation

| March 23, 2023

Last week, the Ontario government announced its plan to amend provincial employment legislation. Although the initial announcement only referenced two proposed changes – one related to the rules respecting mass terminations under the Employment Standards Act (the “ESA”), and the other related to a new requirement for employers to provide new hires with certain information – the recently tabled Bill 79, Working for Workers Act, 2023 contains several additional proposed changes that would, if passed, affect employers across Ontario.  

Proposed Amendments to the Employment Standards Act

Bill 79 proposes to amend the ESA in several ways, including the following:

  • Rules Applicable to Mass Terminations: Under the ESA, special rules apply to mass terminations where fifty (50) or more employees are terminated at an employer’s establishment within a four-week period. Under these rules, affected employees may be entitled to eight (8), twelve (12) or sixteen (16) weeks’ notice, depending on the total number of employees being terminated. The government has proposed to change the definition of “establishment” in the ESA to explicitly include employees’ home offices. As a result, employees who work entirely from home would be made eligible for the same enhanced notice as in-office and other employees in the event of a mass termination. The government has also proposed a new requirement for employers in mass termination situations to not only provide copies of Form 1 to the Director of Employment Standards and to post it in the workplace, but also to provide copies to each of the affected employees.
  • Entitlement to Reservist Leave: The government has proposed to amend the provision in the ESA detailing when an employee is entitled to reservist leave to provide that an employee in treatment, recovery or rehabilitation related to a physical or mental health illness, injury or medical emergency resulting from their participation in certain operations or activities, including, for example, their deployment to certain Canadian Forces operations or participation in Canadian Forces military training, will also be entitled to reservist leave. The government has also proposed to reduce the default minimum period of employment required prior to entitlement to reservist leave from three (3) months to two (2).
  • Licensing Requirements for Recruiters and Others: The government has proposed to enhance licensing requirements for recruiters and for those who engage or use the services of third-parties in connection with the recruitment or employment of foreign nationals. Currently, the ESA focuses on those who have charged fees to a foreign national in violation of section 7 of the Employment Protection for Foreign Nationals Act (the “EPFNA”). However, the proposed changes would expand this to also consider those who have collected such fees after they have been charged by others.

Proposed Amendments to the Employment Protection for Foreign Nationals Act

In addition to providing greater protection to foreign nationals under the ESA, Bill 79 also proposes to amend the EPFNA. The proposed amendments relate to contraventions of subsections 9(1) or 9(2) of the EPFNA, which prohibit those employing foreign nationals and those acting on their behalf, as well as recruiters and those acting on their behalf, from taking or retaining the foreign nationals’ property, including their passport or their work permit. Specifically, the proposed amendments provide that the Ontario Labour Relations Board would be required to reduce the penalty set out in the notice of contravention in certain circumstances, and establish higher maximum fines ($500,000 for individuals; $1,000,000 for corporations) upon conviction for a contravention.

Proposed Amendments to the Occupational Health and Safety Act

Bill 79 also proposes a single amendment to the Occupational Health and Safety Act (the “OHSA”). Specifically, the proposed amendment would increase the maximum fine payable by a corporation for a conviction under the OHSA from $1,500,000 to $2,000,000.

Other Proposed Amendments

Besides the above, Bill 79 proposes to amend other pieces of legislation that could impact some employers and their employees, including the Fair Access to Regulated Professions and Compulsory Trades Act and the Ministry of Training, Colleges and Universities Act.

In Our View

In its initial announcement, the government indicated an intention to implement regulatory changes that would require employers not only to provide new hires with certain information about their job in writing, such as their pay, work location, hours of work, but also to do so by a specified date. Although Bill 79 does not address this specifically, we do note that the bill includes a provision expanding the Lieutenant Governor’s regulation-making authority to include the ability to prescribe information that must be provided to an employee or a prospective employee, in writing, and to establish when that information must be provided. Accordingly, this provision appears to lay the groundwork for such changes to be implemented following the passage of the bill.

At the time of publication of this article, Bill 79 was at second reading. Emond Harnden will continue to monitor its progress through the legislature and will update readers if and when the bill becomes law.

For more information, please contact J.D. Sharp at 613-940-2739 and Kassandra Tannouri at 613-563-7660.