Employment, Labour and Equalities Law Webinar Series: A Year in Review 2023

ELISA SCALI: Good morning. I think we're going to get started now. My name is Elisa Scali. Welcome to our webinar this morning. Before we begin our webinar, I would like to acknowledge that because we're all based in different cities and provinces across Canada, we are located in different traditional Indigenous territories. Some of which are covered by treaties. I encourage all of us to take a moment to reflect upon and acknowledge the land upon which we are living. If there are Indigenous people attending this webinar, please feel welcome.

 

On behalf of the Gowling WLG Employment Labor and Equalities Group, I'd like to welcome you to our final webinar of our 2023 webinar series. Hard to believe that we are coming to the end of 2023 and we are at that moment in time where we recap the notable decisions and other latest legislative developments of 2023. To help us do that, today, we have a distinguished panel-- Bettina Burgess, John Peters, and Mark Josselyn.

 

Bettina, John, and Mark are all very senior employment counsel practicing with our Employment Labor and Equalities Group. I've had the good fortune to call them all my partners and work alongside them for too many years to count. Bettina works out of our Waterloo office, and Mark and John work out of our Ottawa office.

 

And fun fact about Bettina before we begin is that-- and I just learned this, she is a big fan of karaoke. And she's such a big fan that she actually has her own signature karaoke song, Mr. Brightside. Now, that's a difficult song, so I commend you, Bettina.

 

John told me that the last time he attempted karaoke was about 10 years at an Ottawa pub. It didn't go so well. He chose a song that he thought would be an easy Frank Sinatra song, Summer Wind, a song-- I don't even actually know that song. Apparently, he failed horribly causing a mass exodus of every single patron in the bar, including his friends. A feat the bartender remarked had never been accomplished in the 20 years that they had karaoke at that pub.

 

Now, Mark, he likes karaoke. But you know what he likes more? Soccer. He spends his time with his soccer buddies every Friday night, not singing karaoke. But sadly, he still has aspirations of a professional career. Things have been going so badly for his favorite team, Manchester United. In particular, their goalkeeper, that he's still hanging out by the phone waiting for that call. But I'm sorry to tell you, Mark, we're not too worried that we're going to lose you to Manchester United anytime soon.

 

Now before we begin our program, we have a few housekeeping items. The PowerPoint you will see today will be sent to you following the webinar. The webinar is being recorded and the recording will be accessible on our website. It is accessible with all the other webinars that we've presented this year. So you can certainly view those previous webinars if you did not have an opportunity to join. Just go to our page. And I believe the link may also be posted in our chat-- or sorry, in the Q&A.

 

Finally, we do have some time at the end for Q&A. So if you have questions, please add them to the Q&A, and we will get to as many of those questions as we can at the end of the webinar as time permits.

 

Now, before we begin, just a little legal disclaimer. The presentation today is not intended as legal advice. Because this is a high level overview, it's impossible to cover all relevant details. For specific advice, we always advise that you consult your legal counsel before making any decisions or taking any actions. As things evolve, your best course of action could also evolve. Following up to date and reliable sources for your information is important. This is an Ontario-centric review. Each province and federal regime has different rules.

 

OK, so now that we've gotten that out of the way, let's begin. And I'd like to start our discussion today with what's likely one of the most important or talked about topics in employment law, which is the relentless attack on termination provisions or any provision for that matter that limits an employee's common law entitlements. The overarching theme in these cases is the need to protect the interests of the employee and the right to wrong any-- the right to wrong any power-- any issue that results from a power imbalance, sorry.

 

But the issue is have we gone too far now. Are we imposing such onerous obligations on the employer that we've gone too far to the other side? And Bettina, there's a case that deals with this. Could you help us review that case and where we stand on the law today?

 

BETTINA BURGESS: Sure. Thank you very much, Elisa. And I know when you described all of us as being very senior, you didn't mean old. You meant wise. [LAUGHS]

 

OK, so poor Mr. Maynard lost his job after many years with Johnson Controls after singing Mr. Brightside badly at the Christmas party for Johnson Controls. Not really. But he was entitled to quite a bit on termination of employment. There was a decent termination provision, very generous termination provision in his employment agreement.

 

But when Johnson Controls issued his termination letter in order to get amounts in excess of common law, he did have to sign a release. The package offered to him at the time did not include any RSUs. His RSU agreement and the RSU plan included forfeiture provisions. Meaning that on termination of employment, any unvested RSUs would be forfeited, and he would not be entitled to the value of them.

 

He complained that Johnson Controls did not give him the value of the RSUs on termination of employment, the ones that had not yet vested. And Johnson Controls held firm. You're not entitled to it. It's in our plan, in our agreement. And so Mr. Maynard sued. And Mr. Maynard was successful.

 

He was successful because yes, indeed, the plan did include those terms, but Johnson Controls never brought the agreement to his attention. So while the courts are just as Elisa said, on a relentless attack against employers with respect to unfavorable terms, it is not unreasonable in this particular case that there was a finding against Johnson Controls because it is now very well established that it's great if you're an employer and you have the terms in writing, which you must do if it's an unfavorable provision, but you have to bring it to the attention of the employee.

 

It's no longer acceptable to say, well, everything's up on our intranet and the employee has the obligation to go to the intranet every once in a while and check out what new policies and agreements are there. The obligation is always going to be on the employer to bring any unfavorable terms to the employee's attention and get their agreements.

 

Also, with respect to equity plans, just a note that if you are an employer that uses equity plans and agreements, you have to make sure that the terms of those plans align with whatever is in the employment agreement. There ought not be conflicting provisions. If there are, one of the agreements needs to set out which terms govern in the case of conflict. Otherwise, you're going to end up with a decision from the court, saying that there's a conflict, it's ambiguous, so it's common law. And that is always going to land in favor of the employee.

 

And in particular, if you are an employer with a US parent or a foreign parent, oftentimes there's a global plan. You need to make sure that there's an addendum, or at least, the award agreement complies with the Canadian requirements because they can often require different language than what is set out in those foreign plans.

 

JOHN PETERS: Oh, I just like to jump in a little bit, Bettina, and say employers should also be careful not to sprinkle or include termination provisions and other ancillary policies codes or agreements. We've seen some very sad cases where the termination provisions are perfectly fine. But in the code of conduct, there's a clause that says, any breach of this code would result in termination with cause and not entitled to the employer-- the employee to any notice or any payment in lieu thereof.

 

And that could scuttle the actual very enforceable employment agreement. So be very careful in addition, to equity plans or stock option plans, to make sure your ancillary codes of conduct, IP agreements, confidentiality agreements don't include something that will get you into trouble.

 

ELISA SCALI: Thank you, Bettina and John. So we've seen in recent years that attacks on the enforceability of termination provisions are mostly based on allegations, like you mentioned, John, that the terms of the provisions don't comply with the minimum requirements of Employment Standards.

 

And in response, we've often seen employers say, yes, but I have a saving provision in my agreement, which in a nutshell says, if this agreement does not comply with ESA, don't worry, you're going to get your entitlements. But Mark, where does the law stand on this? Can those saving provisions actually save an invalid termination clause?

 

MARK JOSSELYN: I think, Elisa, that the easy answer is probably no. We've got a recent high court decision, and it's up on the screen. It's Tan and Stostac. And it's instructive on the issue of so-called "saving provisions" in the face of what would otherwise be a wax fail problem for the employer.

 

So if we take a close look at the actual termination provision here, it had a single sentence dealing with termination for cause. And then below that was a paragraph dealing with termination, but not for cause or for convenience. And the termination for cause provision, it was what I'll call a classic waxtail because it purported to allow the employer to terminate for cause without any notice or any pay in lieu of notice. And we all know now that doesn't address the willful misconduct requirement in the Employment Standards Act. And because it renders not only the termination for cause provision unenforceable, but it taints the entire termination provision as well.

 

So here, the termination was not for cause. But the termination not for cause paragraph contained a sentence at the end attempting to incorporate the provisions of the Employment Standards Act. And Justice Deneen sided with the plaintiff, and he found, "I do not accept that the attempt to incorporate the ESA's provisions in the final sentence of the clauses without cause portion detracts from the clear assertion of a right to terminate without cause for any just cause."

 

So the takeaway here is that the saving provision is not going to save an otherwise invalid termination clause. The termination clause itself must not violate the ESA. You can't fix it up with a saving provision. And anybody else want to jump in?

 

BETTINA BURGESS: Yeah, I'll just jump in, Mark. Thank you very much. Absolutely 100% agree with you. I will note we all still put saving provisions in our agreement knowing that the courts are not going to enforce them. So you'll see them there. But as legal counsel, it makes me so sad when I get an employment agreement from a client that is beautifully drafted, except it has that provision in it, the just cause provision.

 

And as legal counsel, we just know there's no hope even arguing that this agreement is enforceable. The law is just very well settled now. So please, I implore all of you after this webinar, if you have employment agreements, go check them out. And if there's a provision in there that says, we can terminate your employment for just cause, have somebody look at it, legal counsel.

 

ELISA SCALI: Yeah, and we know that even if you have that saving provision, it won't save that clause if it's invalid. And so given the trend, I mean, the trend, it's very-- the employee is getting the benefit of this law and the protections. And so it's not surprising that some employers would prefer to stay out of the courtroom and maybe have these disputes dealt with by way of an arbitration.

 

But as we've seen, even the arbitration provisions in employment agreements are under attack for potentially violating Employment Standards. So John, do you want to tell us about the Nohdomi decision? They've dealt with this issue recently.

 

JOHN PETERS: Sure.

 

ELISA SCALI: On next slide.

 

JOHN PETERS: Yep. OK. There it is. So Nohdomi versus Calidus Capital Corporation, they entered into an employment agreement containing an arbitration clause requiring all claims, as you can see, arising from the employment relationship to be settled by way of arbitration. The arbitration clause also stipulated the arbitrator had the right to determine questions of jurisdiction.

 

In the end, the court found-- sorry, in addition, the arbitration clause said that the arbitration will be governed by the rules of conduct of the Arbitrators Institute of Canada. So what's wrong with that, you might ask. Why not go to arbitration? Well, some clever lawyer argued that even though the termination provisions of the employment agreement might be enforceable, the fact that there was an arbitration clause was to limit the employees' right to go to the Ministry of Labor and make a complaint under Section 96.1 of the ESA.

 

So even though the enforcement or the termination provisions might be enforceable, the fact that you gave exclusive jurisdiction to the arbitrator or through arbitration took away a statutory right to make a complaint at the Ministry of Labor, and that nullified the termination provisions.

 

BETTINA BURGESS: The only thing that I'm going to add to that, John, thank you very much, is just that we typically see arbitration provisions in employment agreements when they are actually written by the US parent. Again, very common to see in US drafted employment agreements. And there is a rationale for that because in the US, the employees are entitled to jury trials. And so US employers are terrified of going to court even for employee matters because there are huge awards given by juries to employees and there are no limits on damages in the US as there are in Canada.

 

And so arbitration clauses are absolutely necessary in the US. And then they get imported into Canada because a lot of times, we have US parents who are carrying on business in Canada. The rationale for an arbitration provision isn't the same in Canada in the employment context. And so if the reason why you have arbitration provisions in your employment agreement is because you're controlled by a US parent, you might want to have a conversation with the US business that it's not going to do you as much good in Canada having an arbitration provision and it kind of muddies the waters as it would in the US.

 

ELISA SCALI: Thanks, Bettina and John for that. Now, where we land if these termination provisions are not enforceable is that the employees entitled to common law reasonable notice. And we know that common law reasonable notice will far exceed Employment Standards entitlements, and usually far exceed whatever termination notice that you tried to provide in that employment agreement. But we have had this idea of a notional cap on reasonable notice that's developed through the case law over the years. But there was a recent decision that I think John's going to tell us about where, perhaps this Notional Cap no longer exists. John.

 

JOHN PETERS: Thanks Elisa. I used to understand where the courts stood. But with this new decision, the Notional Cap of 24 months seems to be in question. This is a somewhat unique case. Mr. Milwid was 62 years old. He had been with IBM for 38 years. The court, in the end, even though IBM had suggested 22 or 24 months should be a reasonable notice for Mr. Milwid, Christmas came early for Mr. Milwid in this case.

 

They rejected IBM's assertions, and they actually awarded 26 months of reasonable notice. And then as a Christmas bonus, they added on an additional month due to economic uncertainty stemming from COVID. The court did acknowledge the notional cap, but they talked about exceptional circumstances.

 

What's concerning in this case is the courts are now reviewing or viewing the regular Bardal factors, such as age, and in this case, 62 is very, very young, and length of service. 38 years is significant length of service. So what used to be exceptional seems to be just looking at the regular Bardal factors and seeing if you could squeeze something in here.

 

To be fair, like Liam Neeson in the movie, Taken, this employee had particular set of skills, skills that had been acquired over a very long career. And I think that's what got him over the line and got him past exceptional-- got him to exceptional circumstances. Mark, do you want to jump in?

 

MARK JOSSELYN: Yeah, I'll jump in. And like John, I have to say until October of this year, I thought I had a better understanding of the so-called 24-month cap. We went all the way back to 2006. We had the Ontario Court of Appeal decision in Lowndes and Summit Ford, coming all the way forward to 2019 and the Dawe decision with Equitable Life, which stood for the proposition that only in exceptional circumstances can the court go over the 24-month cap.

 

And now, I'm completely confused because we had the two decisions on October 23rd. There was the Milwid decision and then Lynch versus Avaya. So one gets 27 months, one gets 30 months in situation, which I would not have previously thought were exceptional. You know, perhaps the finding that Mr. Milwid's employment skills were not transferable got him over the hurdle. And Mr. Lynch specialized in software design for the defendant's unique hardware. But I think it's sounding like it's open season on what is and is not exceptional.

 

And I want to point out also that in the Milwid Decision, not only did he get the Christmas bonus as you said, John, he got the value of his RSUs that would have vested over the period. And that was another $56,000 USD. So Happy Christmas.

 

ELISA SCALI: Yes. So what have we learned from these cases is that the employee is going to be protected here. And any potential wrong that is perceived but that results from that power imbalance is going to be righted by our courts. So we just need to be careful and review those employment agreements probably on an annual basis just to make sure that they are as well drafted as possible and knowing that there is going to be a lawyer that will try to pick it apart and so that it will be rendered unenforceable. We'll just keep defending those attacks.

 

So now, keeping with the theme of contracts, but now moving to fixed term contracts. We've seen a few cases this past year where the court has kind of grappled with the issue of early termination of those fixed term contracts before the expiry date. What do we do? Do we award the reasonable notice to this person? Do we award the balance of the fixed term? Is there a duty to mitigate? So Mark, can you walk us through those cases and let us know where the court stands.

 

MARK JOSSELYN: Well, I wanted to start with the Kopyl and Losani Holmes case. And it's interesting because as far as I know, it's the only reported decision where the defendant employer attempted to make a wax sale argument. So this was a case where the plaintiff had a one year fixed term employment agreement with an unenforceable termination provision within the term. And both parties agreed that it was unenforceable.

 

So when the employer terminated the plaintiff's employment, the plaintiff brought an action seeking payment for the balance of the unexpired term. And in what I think was a clever argument, the defendant attempted to argue that the one year term was, in fact, a form of a termination provision. And so it ought to be rendered unenforceable using the Waksdale approach so that the plaintiff's damages should be assessed according to reasonable notice of common law and not the balance of the contract.

 

And again, although it was a creative argument. Justice Harper got found for the plaintiff employer saying, "I find that a clause that fixes a term of the contract clearly and unambiguously to a defined term limit cannot be considered in the same light as a term in an employment contract that provides for early termination." Bettina, what do you think?

 

BETTINA BURGESS: I think that this raises a very good point, this decision. Because I often have clients who have termination provisions that end up being unenforceable for whatever reason, but there are more favorable terms within the agreement for the employees, such as equity or bonus, that type of thing.

 

And so the client will say, well, OK, fine. If the termination provision is unenforceable, then all of the other terms are unenforceable too. And we're not going to pay the employee the bonus or give them their entitlement under the RSU agreement. And the answer to that always is, wouldn't that be nice?

 

What we can guarantee is that the courts will enforce the favorable provisions no matter what. If there are unfavorable provisions, unfavorable to the employee, they will not be enforced. That's almost a guarantee.

 

MARK JOSSELYN: OK. And so Elisa, do you want me to move to the next slide? This is a Tarras versus the Municipal Infrastructure Group decision. And we added this case because it's another example of the dangers of fixed-term agreements. In this case, the employee had a three-year fixed-term contract and the employment relationship was terminated with 23 months remaining.

 

And again, the termination provision suffered from a Waksdale analysis, so it wasn't enforceable. And the court held that the invalid termination for cause provision tainted the termination for convenience or not for cause provision. And in the result, the plaintiff was entitled to the balance of the fixed-term.

 

And the worst part of this for the employer was going back to the principles set out by the Ontario Court of Appeal and Howard versus Benson Group, all of this is without any obligation to mitigate. Over to you, Bettina.

 

BETTINA BURGESS: The one point that stuck out for me that resonated is the fact that the employer tried to argue that the plaintiff in that case, Mr. Tarras, well he was very sophisticated, he had his own legal counsel at the time the contract was negotiated, and he negotiated terms that were beneficial to him. And therefore, he ought to live with the unfavorable terms. That won't matter.

 

So it doesn't matter how sophisticated an employee is. It doesn't matter if they have legal counsel negotiating the agreement on their behalf. If the contract is not drafted properly, the court will, nevertheless, side with the employee. So that argument is pretty much out the window.

 

I'm up for Monterosso. OK, so this case really hurts because it's a six-year fixed-term agreement. There is absolutely a time and a place for fixed-term agreements, because lots of employers have seasonal employees and fixed-term is appropriate, short duration, fixed-term employment agreements.

 

And if you know that it is truly a project-based assignment, then a fixed-term is appropriate, because you wouldn't want to bring an employee on knowing yourself that it's for a fixed-term and leading them to believe that it's for an indefinite term. And then you fire them 12 months later, because you could get into trouble for that as well. But for goodness sake, if you're going to use fixed-term agreements, particularly for over 12 months, please, please make sure that you include early termination provisions that are drafted properly.

 

In this particular case, there was no early termination provision and Mr. Monterosso was entitled to all of his damages. Am I talking about the right case? Yes, I am. Yeah. And we also have to ensure that all of the terms end up in that agreement, terms that are discussed by email. Courts will oftentimes not allow that evidence in to interpret the agreement. Over to you, Mark.

 

MARK JOSSELYN: Yeah. The other aspect of this case that's noteworthy is that not only did it involve an independent contractor as opposed to an employee. It was, as Bettina said, it was a six-year fixed-term, but there were 65 months left to run. So this was a big time case.

 

The only good news here for the defendants is that the Ontario Court of Appeal said that the independent contractor aspect of it changes what would otherwise be a Howard versus Benson Group, which just mentioned before. There's no duty to mitigate the breach of a fixed-term agreement. But they said no. When you're dealing with an independent contractor, Howard versus Benson Group, it does not apply. And so there is, in fact, a duty to mitigate. That's the good news.

 

The bad news is, it didn't help this defendant because they went on to say that the defendant didn't lead any evidence to establish that there were jobs that the plaintiff could have taken. So remember that the onus is on the defendant to demonstrate a failure to mitigate. And here, that didn't happen. And so the plaintiff was awarded the full value of the unexpired portion of the contract, 65 months.

 

And the court was not going to say, well, we'll take judicial notice of the fact that if he tried at some point over the course of five plus years, he could have mitigated, because the defendant led no evidence the full value of the 65 months was ordered to be paid. So that was a real stinger. Elisa, should we move on to the next one?

 

ELISA SCALI: Yes. Let's move on. We're going to keep with the theme of terminations. But now, we're going to focus more on employer conduct and how an employer's conduct at the time of termination and following termination, even during a wrongful dismissal litigation process could lead to some significant consequences for the employer if they behave badly. And we have a couple examples of bad behavior. And Mark, can you walk us through this first case?

 

MARK JOSSELYN: Yeah. The first case, which I'm referring to, is the PearTree decision. It's fairly recent. And when I read the cost award, I thought, we have to include this in the year end presentation as a cautionary tale for employers. And I want to summarize just a few portions of the cost award by Justice Center.

 

This came out September 29, and the plaintiff was awarded just over $830,000 in costs for a 10-day trial, where the judge found that the defendant conducted the litigation, I'm quoting now, "In an unforgiving scorched Earth and bare knuckle manner." Great language. So you knew what was coming.

 

We started out-- this really was what I would describe as a fairly vanilla large dollar wrongful dismissal, but it evolved when the defendant launched a $1.5 million counterclaim for breach of restrictive covenants because the plaintiff went to work for a competitor, but the restrictive covenants were unenforceable.

 

But along with a million dollar claim by the defendant for punitive damages, in fairness the punitive damages claim was abandoned at trial. But the court described both the counterclaim and the punitive damages claim as "meritless," although only the counterclaim was pursued through to the end of the trial.

 

Additionally, the defendant disclosed relevant documentation very late in the proceeding. And by that, I think about a month before the trial started. The court felt that the defendant invited the litigation and advanced claims for tactical reasons in an attempt to dissuade the plaintiff from pursuing money that was owed to him.

 

And if you read this, I was left with the impression that this judge would have liked to have awarded the plaintiff the sun, the moon, and the stars, and possibly a partridge in a pear tree. John, what was your take on this case?

 

JOHN PETERS: This one actually, like Bettina, this case really hurt to read. It kind of jumping away from the holiday theme. I'm just going to get into the NFL. It reminds me of the Buffalo Bills. They had great counsel. Buffalo has a great quarterback, but it's the textbook example of what not to do when litigating against an employee. Don't go on this crazy run against the employee.

 

Now, they were arguing that the employee wasn't being nice and he was saying defamatory issues in relation to the fact that there was racial discrimination. Employers have to be measured and strategic in dealing with criticisms. You don't go on the offense if you're always walking in 10 paces behind the employee. Don't make it worse by attacking the employee. Go, Buffalo.

 

MARK JOSSELYN: Do you use an [INAUDIBLE] expression, piling on. So we move from that to the Teljeur Decision versus Aurora Hotel Group. And this was a case that was argued as a rule 20 motion for summary judgment. And a lot of employment litigation is being argued that way these days. When there's really not a lot of facts in dispute and you're just arguing over legal issues of how much is reasonable notice.

 

This one proceeded under Rule 20, and there was a termination December 6 of 2021, and the motion was heard in two parts-- at the end of October, and in the beginning of November, 2022. So that doesn't seem like a hugely unreasonable delay. But my understanding is that the current delay on motions for summary judgment in the GTA is significantly longer, perhaps as much as a year and a half.

 

And hopefully by then, somebody has mitigated. But in this case, we were dealing with a 57 year old general manager of a resort who had just over three years of service, and his salary was-- the base salary is $72.5. And although he had prior service with this same defendant for slightly over a year, there was a two-year gap between the two periods of employment. And so the court proceeded on the basis that only the last three years should be considered in assessing what was the plaintiff's entitlement at common law to reasonable notice. And Justice McKelvey concluded, looking at all the Bardal factors, that reasonable notice should be seven months.

 

Now, the court clarified that on the issue of mitigation, the defendant has to establish-- there's a dual onus, one, you have to show that the plaintiff failed to take reasonable steps to mitigate. But that's not enough. You have to go on to show that had such steps been taken, the plaintiff would likely have obtained alternate employment.

 

In this case, the court concluded that there wasn't evidence that would allow the court to find-- that had the plaintiff made better efforts to secure alternate employment. He would have done so during the period of reasonable notice. For me, the most interesting aspect of this case is the discussion of moral damages arising from the manner of dismissal. And we see this now in almost every demand letter that we get. It's an allegation of a breach of the duty of good faith and fair dealing in the manner in which the employee was dismissed.

 

So here, the plaintiff surreptitiously recorded the termination meeting because he knew what was coming. And he captured a number of, I'll say, problems or challenges for the defendants. Number one, they failed to provide him with any notice or letter about the termination despite three separate requests for something in writing. Number two, they failed to provide him with his ESA entitlements in a timely fashion. And that meant-- given that it was a December 6 termination, he had to go through the holiday season without the benefit of any financial support, whatever, ho, ho, ho.

 

And number three, they failed to reimburse the plaintiff for almost $17,000 in out of pocket expenses that were not paid as of the date of the motion for summary judgment 10 months later. And number four, despite assurances that he was going to get more than his ESA entitlements, that's all they ultimately paid him. And in the end, he was awarded an additional $15,000 for moral damages. John, do you have any other thoughts about this?

 

JOHN PETERS: Yeah, I'll jump in because to get back to that piling on reference, there was actually even more. It sort of reminded me of PearTree again. They did so many things wrong. In addition to the four examples that Mark gave in with respect to moral damages, the Judge also commented on the fact that they tried to convince him to resign. They mislabeled his record of employment as ROE, which actually delayed his ESA entitlements.

 

In addition, the employer also warned him that they would call the OPP if he ever came on or close to the premises. So it was ho, ho, ho, uh-oh. I have to say, though, Justice McKelvey did not take that into account when awarding moral damages because I think, they already had so much, and they didn't need that piece.

 

In the end, there was so much grinchiness. And as you may know, grinchiness is Latin for bad faith or unfair dealing. There was no need for medical evidence to prove mental distress beyond the understandable distress of upset of being dismissed. So typically, you can't just argue, I have mental distress because I was dismissed. There has to be something more. And the facts of this case gave them so much more. They didn't need medical evidence to show that there was clear distress on behalf of the plaintiff.

 

ELISA SCALI: Thanks, Mark and John. I guess that's just a warning to play nice in the sandbox even if you're being sued by your employee because there will be consequences. So moving on now to some other notable cases. We've got a bunch of different cases that we're going to review with you. None of them fall under a specific theme, so we're going to move away from that termination theme and review some of these cases with you. And I'd like Bettina to start with the Stomp decision, which is a human rights-related case.

 

BETTINA BURGESS: Thank you. OK, so this case is really very technical. It deals with really a procedural, jurisdictional issue. In this particular case, Mr. Stomp suffered a heart attack and he was on a leave of absence. And then he returned to work and he was seeking accommodations. And apparently, 3M was refusing to provide him with the accommodations that he was requesting.

 

And so he sued. And the cause of action that he alleged was multiple, one being constructive dismissal. And then within his civil lawsuit to the courts, he alleged discrimination and failure to accommodate. And this is significant because a long time ago, many moons ago when we were all still baby lawyers, right, the ability to bring a human rights-related claim for discrimination or failure to accommodate was within the sole jurisdiction of the Human Rights Commission. At the time, it was the Commission. Now, the Tribunal.

 

And you couldn't seek damages for discrimination or failure to accommodate within the Civil court. So you could claim wrongful dismissal, breach of contract, that type of thing. Then several years ago, the Human Rights Code was amended to say that you can sue civilly and you can, within that civil claim to the court's alleged discrimination failure to accommodate and seek damages on that basis. But there's a caveat. It has to be tied to a cause of action that's recognized under that system, being breach of contract or constructive dismissal.

 

And so in this particular case, 3M brought a motion to have Mr. Stomps case dismissed, arguing that the Civil courts lacked jurisdiction to hear his claim, because it was really just a claim for discrimination and failure to accommodate. And that because there was no other type of cause of action, it should be taken to the Human Rights Tribunal only.

 

Now, his lawyer alleged that by virtue of 3M failing to accommodate him, they created a poisoned work environment. And therefore, that constituted constructive dismissal. It's a bit of a circular argument, but it won the day for the purposes of defeating the motion to have the case dismissed. Now, that's not necessarily the end of the day. John, does it mean that Mr. Stomp will get his damages?

 

JOHN PETERS: No, it doesn't because this was just a motion to strike. It wasn't a motion on the merits of the case. It was just showing that the court had jurisdiction to hear the case. So the case will continue in front of the Superior Court of Ontario.

 

ELISA SCALI: OK, thank you. So let's move to another case. We've talked earlier about how termination provisions are under attack mostly because of an argument with respect to the content, that it didn't comply with minimum Employment Standards. But there are other challenges to the enforceability of employment agreements that go more to process, the sign up process and issues with that process.

 

John, can you tell us a little bit about this Goverdhan case where they were dealing with the issue of consideration and the sign up of the contract?

 

JOHN PETERS: Sure. So this Court of Appeal decision arose from the wrongful termination claim where the employer again, stops sought to stay the action pursuant to the arbitration provision. So what we saw earlier in Nohdomi above. These arbitration provisions were contained in two of the last three employment contracts signed by the parties.

 

The central issue here was that the arbitration was newly introduced to the employer in an ongoing employment relationship and whether there was fresh consideration provided to the employee to sign these new employment agreements. The Court, overall, viewed the new employment agreements, including the arbitration provisions to be detrimental to the employee, and therefore, reinforce the concept of simply agreeing to continue the existing employment relationship is not fresh consideration.

 

The key takeaway is that when providing the employee with new employment agreements, there needs to be a clear benefit to the employee. We see this all the time when employees are moving to new agreements. There simply needs to be clear and explicit fresh consideration. What we always recommend is that you include a signing bonus that it has a sole purpose of providing that fresh consideration.

 

Because the problem is sometimes is when you say, well, he got a salary or the employee got a salary increase or got this or that, that may have already come in the normal course, like, maybe all employees got a 3% salary raise. And that wouldn't be seen as fresh consideration. It's really important to include specific and clear fresh consideration. Mark, do you have anything to add?

 

MARK JOSSELYN: Yeah. Well, here, the Court of Appeal agreed with the motion judge that simply adding mediation and arbitration clauses was not fresh consideration. And the other argument that they made, which failed was that changing the governing law from Connecticut to Ontario. The Court of Appeals said that's not a benefit because Ontario law is going to prevail in any event. You can't contract out of the Employment Standards Act.

 

So before we start getting a million questions about, OK, so what is adequate fresh consideration? I'll share just 30 seconds with you. This is a debate that Melanie Polowin and I have been having for 30 years. I am from the Peppercorn School, which says that once you establish even a Peppercorn of consideration, the court is not entitled to evaluate the sufficiency of the consideration. Just its existence is enough.

 

Melanie thinks it needs to be enough for dinner for two and a nice dinner with a bottle of wine. So there's a bit of a debate as to what is sufficiency. We've been sticking in $10, $50, $100, $200. That's the debate. But once it's there, that should be enough to get you over the hurdle. Anybody got any other thoughts on sufficiency of consideration?

 

BETTINA BURGESS: I hate that topic. Hate it for the reason that you've discussed. But I side with Melanie on the issue that the more consideration you provide, the less likely it is that a Court is going to go looking for reasons to find the agreement unenforceable. If you give an employee $10, they're going to find a reason to render that contract unenforceable.

 

JOHN PETERS: I agree with Bettina and Melanie because I always agree with Melanie. And normally, I agree with Mark. But you don't want to be that employer that makes new case law about the sufficiency of consideration. You don't want to be that new case that could come up. So I think you should be on the heavier side of the dollar figure.

 

ELISA SCALI: Yeah, and let's not forget that it doesn't just have to be a payment either. There could be other ways, other things of value that you can offer an employee, like a one-time advance of vacation or things like that, that would not necessarily be just like a signing bonus. So you could also think outside the box. Whatever's of value could potentially be a fresh consideration, but not the provisions that they were trying to claim were a benefit in this case.

 

So let's move on to another topic-- privacy and the right to or expectation of privacy in the workplace. Mark, can you tell us about the recent decision where the courts were kind of grappling with this issue?

 

MARK JOSSELYN: I'm happy to start with the Elementary Teachers Federation of Ontario versus York Region District School Board. Although I want to point out before saying anything that leave to appeal to the Supreme Court of Canada was sought and obtained and the appeal was actually argued six weeks ago, October 18. And so everything that we're going to say about this case is subject to being wrong. That just put that out there.

 

But for now, we have the Ontario Court of Appeal decision holding that the actions of the principal in this case in reading the log, taking screenshots of it, sending the screenshots to the board violated the teacher's reasonable expectation of privacy and constituted an unreasonable search under Section 8 of the Charter.

 

So for those of you who've not been following this case, the private communications of two teachers, which were recorded on their personal password-protected log were read and captured by screenshots taken by their school principal, and then used by the school board to discipline those teachers. On the advice of their union, one of the teachers was told to start keeping notes about concerns that she had in connection with another teacher who she felt was both ineffective and receiving preferential treatment from the school principal.

 

And so this teacher gave another teacher access to the log which was password-protected and accessible only to those two teachers who could both contribute to the log and read it. So they didn't save the log on any workplace drive or on the laptops. Instead, it was stored in the cloud on one of the teacher's private Google accounts.

 

The existence of this log became known within the school and the board superintendent advised the principal first to speak to HR. After that, the IT Department searched the Board's online files to see if they could find the log. And then hocus-pocus, one day after one of the teachers had left for the day, the principal just went meandering into her classroom and saw that the school-provided laptop was open.

 

And when he happened to touch the mouse pad, a document popped up on the screen. He proceeded to read this document, scrolled through it, and realized that he'd found the log. And thinking quickly, he used his cell phone to take screenshots of the entire log. So there's a 100 screenshots in total. Anyway, the screenshots were forwarded to the board and they formed the basis upon which the board issued letters of discipline in the form of written reprimands, which we're going to stay on their files for three years.

 

Initially, the arbitrator, who had to deal with the grievances, he said there had been no breach of any reasonable expectation of privacy. And then in a split decision, the Divisional Court upheld 2-1 to the arbitrator's decision, but the Ontario Court of Appeal disagreed with both of them. And now, we're awaiting final word from the Supreme Court of Canada. Bettina, tour to you.

 

BETTINA BURGESS: So the only thing that I'll add is that these cases can sometimes be confusing, because when a charter argument is made with respect to violation of someone's privacy rights under the Charter, it does not impact every single employer in Canada or Ontario. The reason why the Charter applied in this case is because it was held that the school board is a state actor.

 

And so similar to the police, any type of employer, who is considered to be government or state is bound by and subject to the Charter. An employer who is provincially regulated and is not a government authority is not subject to the same type of Charter obligations. And I would also point out that Ontario provincially regulated employers are not subject to any privacy legislation with respect to employee personal information.

 

The only provinces in Canada that have privacy legislation governing employee personal information in the provincially regulated context are British Columbia, Alberta, and Quebec. So in all of the other provinces, you don't have the same types of privacy restrictions. Now, does that mean that you should go snooping in your employees' emails and what they've been doing all day on their computers? Probably not because that is not a very welcoming type of workplace.

 

But if you have reason to believe that your employees have engaged in some type of misconduct and you reasonably believe that you will find evidence on their computer or in their emails, if you're in one of these provinces, like Ontario where there's no privacy legislation and you are not subject to Charter search and seizure obligations, then you can go and look.

 

And also keep in mind that under the ESA, if you have 25 or more employees as of January 1st of every single year, you do have the obligation under the electronic monitoring requirements to let your employees in writing what types of electronic monitoring you are engaging in as an employer.

 

ELISA SCALI: Thanks, Bettina. Also, if you do have that situation where you are looking because you have reason to believe, in my view, I've always said, don't be looking at something that clearly is not related to the employment. It's a confidential email or personal email. You don't need to go snooping into those emails. You don't have any reason to do that. So that should really be avoided.

 

OK, so moving on to our next case, which also deals with another serious and sensitive workplace issue is harassment. And this issue over whether there is a tort of harassment. And Bettina, can you walk us through this recent decision?

 

BETTINA BURGESS: Yes. So this case is in Alberta decision and these events took place in Alberta. This individual-- this wasn't in the employment context. This was a public citizen who was a menace. He was harassing, and I would say, terrorizing some individuals who worked within the Alberta Health Services. And I believe it had to do with COVID and masking and vaccines, and things like that.

 

And Mr. Johnston was describing the Alberta Health Service employees as terrorists and saying that he was going to get them and he was going to go after their children and their spouses. And he was very publicly inciting hate and essentially, terrorism against these individuals. And sometimes our law is not perfect. And there are not always remedies available in black and white.

 

And what our courts are able to do is develop torts. And that is a type of remedy when someone has been harmed, but there's no statute addressing it. It's not a criminal offense. And so what the Alberta Courts did was they created a tort of harassment and they set out elements. And with every tort, there are certain elements that must be met.

 

And in this particular case-- did we set out on this slide? Yes. What the elements are and they're there on the slide, the four elements. There have to be repeated communications, stalking or harassing behavior. The harasser knew or ought to have known that their conduct was unwelcome. The behavior impugned the dignity of the victim would cause unreasonable person to fear for their child, their loved one's safety and could foreseeably cause emotional distress. And then the conduct of the harasser actually did cause harm.

 

So if you can establish all four of those elements, which was done in this particular case with Mr. Johnston, then damages will be awarded in that case. Now, this hasn't gone to the Court of Appeal yet. So the Court of Appeal in Alberta could-- sorry, the sun is creating a very strange effect here. The Court of Appeal could overrule it. That's unlikely to happen. This is probably going to be a new tort that's going to stick.

 

JOHN PETERS: I'll jump in. I think the court was really-- given the horrific, horrific behavior of Mr. Johnston, the court was trying to find a remedy for the individual plaintiffs, especially Sarah Nunn. Both individual plaintiffs, in addition to the Alberta Health Services, these individual plaintiffs were public health inspectors responsible for educating the public and enforcing the order that the chief medical officer of health during the pandemic as Bettina alluded to.

 

While this particular case, as Bettina said, is an Alberta case, it could come to Ontario. And why are we talking about it because it's not really an employment issue necessarily, but the employers may be-- it's important because employers may be vicariously liable for harassment or for the torts of their employees, if this is adopted in Ontario.

 

It's a brand new tort. There was another new tort that was attempted recently, the tort of family violence, which was actually rejected by the Court of Appeals. So we'll see where this goes. What's really important here is a message was sent-- Miss Nunn, one of the individual plaintiffs, received $300,000 in general damages for defamation, $100,000 in general damages for harassment, and a further $250,000 in aggravated damages.

 

So it was a strong message from the court to say you can't just rely on some freedom of speech argument and attack individuals that come to haunt you. And it can come to haunt employers if it's done in the employment context, we believe.

 

The next case is a Human Rights Tribunal of Ontario case. You can see the L.C.C. versus M.M. It's important to note that the Human Rights Tribunal typically anonymizes the parties' names to protect the privacy of these individuals. So unlike in a normal court cases where you actually see the names of the plaintiffs and the defendants, in HRT, it will matter. So they're typically anonymized. So that's why we have the letters. It's actually, the plaintiffs were the employer and an employee.

 

And this is a case about the enforcement of a settlement, minutes of settlement that was reached at mediation. Basically, after the mediation and after the minutes of settlement were signed, which had very strict restrictions on-- and if you read the case that the non-disparagement clause and the confidentiality clause is quite detailed and quite explicit, that they cannot disclose the nature of the settlement. They cannot make any disparaging remarks.

 

After the mediation, the defendant or respondent, M.M. posted to social media on LinkedIn, "To all those inquiring, I have come to a resolution in my human rights complaint against the employer and the individual." So that person actually named both the employer and the individual, for sex discrimination. The court came down hard on the respondent and found that it was-- part of this case was a question of interpretation of the minutes of settlement.

 

And the court certainly found that what the employer-- sorry, what the respondent did was basically turned out to the world. They threw it out on LinkedIn. They didn't say, there was an opportunity for the respondent if asked about their case that there was a specific inquiry. They could say, all matters have been resolved. That was allowable under the minutes of settlement, but they went much further. They actually posted to the world on LinkedIn that their case for sexual discrimination against particular people had been resolved. And the court found that, that was problematic.

 

Mark will talk about why this is significant case. And later on, talk about NDAs in general, and what's coming.

 

MARK JOSSELYN: Yeah. The reason we included this case was because it is-- it's a very recent restatement of the principles that were articulated by the Ontario Divisional Court back in 2014 in a case called Jan Wong versus The Globe and Mail. And we've been drafting into our settlement agreement since 2014 what we call Jan Wong clauses.

 

And in that case, the court required Ms. Wong to repay a significant settlement to The Globe and Mail because she breached the confidentiality provisions in the settlement agreement when she subsequently published her book out of the blue about her experience. So the settlement specifically said that if she breached the confidentiality obligation, she'd have to pay back to the employer all of the settlement proceeds. And that's what the Divisional Court made her do. And I listened to her talk about it recently on a CBC presentation.

 

Anyway, come forward to 2023, and now we've got the HRTO in this L.C.C. and M.M. decision. And there were two provisions. There was a non-disparagement provision, as well as a confidentiality provision. And as John pointed out, she took to social media and made reference to what had been settled, and named the two people and talked about sexual harassment.

 

And the adjudicator felt that the additional information and the reference to sex discrimination, when attached to the two names, the names of the individual and the employer, created a real potential of serious reputational damage. And additionally, it was the publishing on social media, which was not in keeping with the words in the agreement that said, "upon inquiry, you can respond."

 

So the adjudicator also considered whether or not this repayment obligation was a disguised penalty provision, which would be unenforceable at law, but concluded that it was a liquidated damages clause and an appropriate remedy in this case.

 

ELISA SCALI: And I think, if employers want to use or have a confidentiality clause in their agreements of that nature, I think one other point to mention is, this is just not a standard clause. So you want to make sure that at the time that you're agreeing to the terms of the settlement, that when you mention that the person will have to sign a release, that you expressly state that there will be confidentiality clauses in that. And I also go so far as to say like a Jan Wong clause, so they know what we're talking about. And then you don't get into an argument over well, no, we didn't agree to that. So just that's one additional point.

 

So moving on to our last case. This is a case dealing with Cause for Dismissal. And John's going to walk us through this decision.

 

JOHN PETERS: So this is our last case. It's your Christmas present if you're on the employer's side. This is a very, very rare case. It's a unicorn. It's an ESA Cause for Dismissal case that came down. It actually came down in February of this year. So maybe it's a Valentine's Day present for employers.

 

I think the facts are crucial to the decision. Park worked for Costco for about 20 years, built a Google Cloud-based website for the toys department. It was an internal website, which allowed employees to easily share files with each other. Park provided the website. He was very happy, very proud of himself. And the facts of the case are he didn't get the praise that he was expecting from his superiors.

 

They effectively didn't even say, thank you, and they proceeded to use the website. It worked great. Park became upset that he wasn't getting all the attention or accolades for this great website. So he went in and he deleted the website. And so it wasn't-- it looked like it just disappeared.

 

Luckily, Costco was able to use the IT Department to put the website back in place. And everything was great, but Park saw that. So he went back in and re-deleted the website out of spite. He also engaged in a series of dishonest, insubordinate, and disrespectful email towards management. He was asked, did you delete the website? And he said, no. And the IT Department could show that Park definitely deleted the website.

 

So in previous seminars, we talked about two levels of cause. We have common law cause, and then we have statutory cause in Ontario, which I call Super Cause where you have to show that there was willful misconduct, disobedience, or willful neglect of duty that was not condoned by the employer.

 

The court found that was the case here, and that as it says in the slide, they were not mere errors in judgment. They were intentional, discrete acts involving destruction or attempted destruction of company property, insubordination, and setting and misleading emails, saying, I never did anything wrong. This is sort of a unicorn because we don't see this.

 

A cautionary note, though, as we've stated in our comparative sort of this statutory cause, the ESA cause or Super Cause as I like to call it, it's a difficult test to meet. Costco met it in their arguments. To get to ESA cause, it's a difficult summit if you use the mountain analogy. It's a very high summit to actually get to. And the mountain has not changed. The mountain has not shrunk, I think, because of this cause.

 

And I think this is just the case where there was an employee behaving very, very badly. And the court saw through it. The defendant-- sorry, Park, this plaintiff tried to argue that this was retaliation because he was off on mental health issues. And the court did not accept any of those arguments and actually awarded costs against the employee. So Happy Valentine's Day.

 

MARK JOSSELYN: Well, can I just add before we think that this was a really Happy Valentine's Day for the defendant. Although the defendant won here, the cost award after [AUDIO OUT]

 

ELISA SCALI: Mark, you're on mute.

 

MARK JOSSELYN: Sorry, sorry. I was saying the words you hate to hear, you're still on mute. Before we get too excited about this being a Valentine's gift to the defendant, I think this was an eight day trial with written submissions, eight or 10 day trial. And on the Costs Award, although the defendant was awarded $120,000 in costs, their partial indemnity submission for costs was $136,000.

 

So if that's partial indemnity, and we use as a general rule that it's never more than two thirds. If we assume that the actual costs incurred by the defendant in doing that kind of a trial were $200,000 and we don't know how much of the $120,000 they're going to recover, there at least out $80,000, and maybe $200,000. So sure, they had to defend this because it was being brought against them. But this is why case is settled. This is why we do settle cases because it's really expensive to try them. OK, Elisa, sorry, I know we're running out of time.

 

ELISA SCALI: Yeah. So let's move on. We've reviewed the notable cases. Let's look forward to 2024. What is proposed legislation that might come into force in 2024, and what legislation is in force that we need to be concerned about to make sure that we're on side for when it does come into effect in 2024. So Mark's going to start us off with this prospective legislative changes.

 

MARK JOSSELYN: And we'll go quickly through this because some of it's in second reading and not law yet. The previous provincial government back in 2018 passed the Pay Transparency Act. But with the change of government, it never came into force. And it's unlikely that the current Ontario government Bill 149 is going to mirror that statute or go as far as that statute went.

 

Bill 149, the Workers for Worker Four Act 2023 is currently in second reading. If it's passed, we know that employers will be required to include in any public advertised job posting enacted compensation or the range of expected compensation for the policy. But that's not a significant as the changes that were recently introduced in BC or the ones that would have been in the 2018 legislation.

 

So for instance, the BC legislation, its Pay Transparency Act has reporting obligations, as well as a prohibition against employers asking job applicants about their pay history or retaliating against employees for disclosing information about their compensation to other employees. So that's different.

 

The other things that the Ontario government is currently considering, firstly, legislation that would make Ontario the first jurisdiction in Canada to require businesses to disclose if artificial intelligence is used during the hiring process. And the other one is a ban on non-disclosure provisions in settlement agreements in the case of specific issues, such as workplace harassment and misconduct. And because we are running out of time, I'm not going to go into any more detail than that. Back to you, Elisa.

 

ELISA SCALI: Now, I'm on mute. OK, thanks, Mark. Let's move on now to a new law that is in force and that you would probably want to be aware of going into 2024. And we'll start with John, and the amendments to the Competition Act.

 

JOHN PETERS: Thanks, Elisa. This is important. This came into effect on January 23, 2023. It's an offense for an employer to conspire or agree or arrange with an unaffiliated employer to fix, maintain, control salaries, wages, or terms and conditions of employment. And so you can't talk to your competitors or to other unaffiliated entities and say, what are you paying your people? Let's say you're a grocery store, and let's try and price match to make sure that everyone's getting the same wage. And we can basically wage fix.

 

It's an offense under the Competition Act. You should know it's not a criminal code offense. It does not-- there's also, sorry, a non-solicit requirement. So an agreement between two employers not to poach each other's employees. So no poach agreements. That is also an offense.

 

That does not mean that if you have a non-solicit clause in your employment agreement and you have former employees who have agreed because they're at a certain level not to-- once they go to a different job, they won't try and poach employees to their new employer, that doesn't apply. It has to be two-- it has to be a reciprocal agreement between employers for it to apply.

 

The grandfathering provision, if you do have those agreements, you're not going to be guilty of an offense for having them. But if you act on them now after June, 2023, you could be held liable, or you should be held guilty of this offense under the Competition Act.

 

BETTINA BURGESS: OK, this is me. And I apologize as to what is going on with the lighting here. Temporary Help Agencies, as of January 1st, any employer that is a temp help agency, so someone who employs employees and then loans them out to other businesses or recruiters, employers who help other employers to find employees, but the recruiter doesn't employ the actual employees, they will have an obligation to become licensed as of January 1st, 2024. And they have to pay a fee of $25,000 in order to become licensed.

 

This applies not just to the temporary help agencies and the recruiters, but also to everyone else that utilize their services. So even if you utilize the services of these organizations, you have an obligation under this new legislation to ensure that they are licensed, and that you are engaging with licensed organizations. Otherwise, you could also face a fine under this legislation. And the penalties are quite significant.

 

So regardless of if you're not a temp help agency and you're not a recruiter, but you use them, make sure that you're ensuring that they have licenses. Otherwise, you could be in trouble under this legislation. The other zinger for this is if you are a temp help agency and your license, you can't get one or your license is revoked, that means that you can't operate but you may still have a whack of employees. this will not constitute frustration of contract, even though you can't operate.

 

And those employees will be entitled either to receive their ongoing pay or you have to terminate their employment or lay them off in accordance with the rules under the ESA. And they're entitled to all of their entitlements. Similar to when an employer becomes bankrupt. It doesn't matter. You still have to pay out your employees all of their entitlements to termination and severance pay.

 

ELISA SCALI: Just clarifying one point. If the recruiter is working for a temp agency as their employee, there's no requirement for that recruiter to be licensed if the temp agency is-- as long as the temporary help agency is licensed. Just to clarify that. If you're an employee, you don't have to have a separate license. Am I-- do you agree with that, Bettina?

 

BETTINA BURGESS: Yes. Thanks, Elisa.

 

JOHN PETERS: OK, this is the last slide. This is in relation to those employers who are federally regulated. I know this has been Ontario heavy, but we thought we'd throw in a Labor Code update. As of February 1st, 2024, employers are required to provide individual notices of termination based on the consecutive years of continuous employment. They're required to provide individual employees with statement of benefits. So everything that they will get upon termination.

 

And they are effectively implementing a system that's similar to the ESA in Ontario. So currently, under the CLC, employers must give employees with at least, three months of service two weeks. This is a graduated system like the ESA, that they can get up to eight weeks of notice or payment in lieu of notice. Just like the ESA, there's also severance requirements currently under the CLC.

 

It's important to note that you shouldn't get too excited about these amendments. They're just sort of lining up with the ESA. But that doesn't mean there's any limit on other significant employee rights, including the right to reinstatement. That must be considered by the employer. So there's all these greater rights you have as an employee under a federally regulated employer still exist. This is just an adjustment requiring the employer to give a minimum statutory notice and to provide these employees with a list and details of the benefits that they will get upon termination.

 

ELISA SCALI: Thanks, John. I just wanted to go back to the temporary help agency licensing requirements. Hot off the press, the deadline has been extended from January, 2024 to July 1, 2024. Just to update that, that was just announced.

 

So moving on to a few-- we have some time for a few questions. And I'd like to deal with the questions that actually came in. We'd offered our attendees an opportunity to submit questions in advance, and we do have two questions that we'd like to review. One of them is, do employers have the right to monitor employees working from home? Who would like to jump in on that question?

 

JOHN PETERS: I'll jump in. I think they do in certain circumstances. If you have a-- again as Bettina alluded to earlier, there's an electronic monitoring process-- sorry, policy that's required in the workplace in Ontario. Of course, the monitoring has to be reasonable. So just normal things that you would normally monitor with respect to, if you shouldn't be spying, and you shouldn't be going on fishing expeditions.

 

But if you do have issues of workplace harassment or other allegations, your ability to maybe search their email or their MS teams conversations should exist. That doesn't mean you're able to turn on their cameras in their houses. You have to respect that they are working from home, and things are a little different. But I think, yes, the answer to the question is generally yes, subject to reasonable limitations.

 

ELISA SCALI: Does anyone have any thoughts on whether you should do it? You can do it, but should you do it Mark?

 

MARK JOSSELYN: Yeah. Just because you have the right to do something doesn't mean that you should do it. You have to think about the HR consequences of your conduct and what that's going to do to the relationship between management and the employees. If you have to monitor keystrokes of people to see that they're actually working when they're supposed to be working, maybe you've got a bigger problem, and maybe there are better ways of monitoring people's performance. You know, timing when they're logging in and out of their computers. Just I pose it as a question. And of course, the answer will be different in different work environments.

 

ELISA SCALI: We have one additional question. Is pay equity federally regulated or should all employers on Ontario have a Pay Equity Policy Plan? Does anyone want to jump in on that one?

 

JOHN PETERS: There is a Pay Equity Act Ontario and it does cover a private sector employers, but not ones that have less than 10 employees. So yeah, there are pay equity obligations. You should have a pay equity plan, unless you're a small employer with less than 10 employees.

 

ELISA SCALI: Thanks, John. So now, I'm just going to look through our Q&A. We don't have many questions. There's one, this is just general words of advice on creating or updating termination clauses that limit common law entitlements in Ontario. Any general words of advice on that?

 

MARK JOSSELYN: Sure. Vote early and vote often. We change, we tweak our employment agreements, and specifically the termination provisions. I won't say on a daily basis. I will say on a fairly, regular basis in response to every piece of jurisprudence that we read. And across the country, our ELE group is very active in chatting with one another and bemoaning the fate of our employment agreements and trying to come up and build a better mousetrap.

 

But we think you should be reviewing your termination provisions and your employment agreements and your policies on a pretty regular basis. I can't say how often because we have a very active Ontario Court of Appeal.

 

JOHN PETERS: And you see, our agreements are quite detailed. And that's because the courts are requiring us as employers or counsel for employers to make sure that you are-- the courts have been very prescriptive as to what has to be an employment agreement or a termination provision if you want it to be enforced. So there are longer than they used to be. And there's boxes that you have to check or initial, and you need to highlight language when you're limiting common law rights.

 

ELISA SCALI: And think one piece of advice is, it's always a good idea to have your agreements. If you're trying to do these on your own, at least have them reviewed by your legal counsel. Because as we've said, the laws changing constantly and we're doing our best to keep up with it. So we're here to help to ensure that whatever you're putting out there is up to date with the most current law, whether it's Gowling employment lawyers or your trusted employment lawyer. But it is recommended that you have them reviewed. Does anyone else want to add anything?

 

Well, I think that's-- we're going to end on that note. We are at our time. I would like to thank our distinguished panel for educating us today. We hope that you found this webinar to be useful and informative. Your feedback on our webinars is important to us. We would truly appreciate that you take just a few minutes to fill out our survey. You can do that by clicking on that or holding your phone up and taking an image of that QR code, a screenshot of the QR code, and that will take you to our survey.

 

So that concludes our Webinar Series for 2023. We look forward to our 2024 series, and we hope that you can join us next year. Happy Holidays on behalf of the Gowling WLG Employment Labor and Equalities team. And somebody-- [INAUDIBLE] also wants to say Happy Holidays. We hope you have a wonderful day.