20 Key Developments In Canadian Labour And Employment Law In 2023

• Published date: 09 January 2024
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Health & Safety, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Littler - Canada
• Author: Ms Rhonda B. Levy, Barry Kuretzky, George Vassos, Monty Verlint and Adrian Jakibchuk

In 2023, Canada saw significant statutory and case law developments in labour and employment law. This Insight provides an overview of notable 2023 developments, with links to more detailed articles and commentary.

1. Ontario, Canada Court Addresses Statutory Tort of Human Trafficking in Labour Context

In Osmani v. Universal Structural Restorations Ltd., 2022 ONSC 6979, an Ontario court was the first to consider a claim for damages for the statutory tort of human trafficking under the Prevention of and Remedies for Human Trafficking Act (PRHTA). Although this tort is often thought of in the context of sex trafficking, its application can also be considered in the labour context as it was in Osmani. While in this case the court dismissed the employee's claim, the case opened the door for future claims. A more detailed article is available here.

2. Alberta, Canada Court of Appeal Decides CERB Payments Should Not Be Deducted from Damages for Wrongful Dismissal

In Oostlander v. Cervus Equipment Corporation, 2023 ABCA 13, the employee cross-appealed the Court of Queen's Bench of Alberta's decision to deduct his Canadian Emergency Response Benefit (CERB) payments from his wrongful dismissal damage award. The Alberta Court of Appeal held that the CERB payments should not have been deducted. A more detailed article is available here.

3. Ontario, Canada Court Finds Employment Contract Frustrated by Employee's Refusal to Become Vaccinated Against COVID-19

In Croke v. VuPoint Systems Ltd., 2023 ONSC 1234, Ontario's Superior Court of Justice decided that an employee's refusal to comply with mandatory COVID-19 vaccination requirements resulted in the frustration of the parties' employment relationship. The employer, therefore, was entitled to terminate the employee's employment without providing notice of termination or damages in lieu of common law reasonable notice. A more detailed article is available here.

4. British Columbia Adopts National Day for Truth and Reconciliation (September 30) as a Statutory Holiday

On March 9, 2023, British Columbia's Bill 2, National Day for Truth and Reconciliation Act, received Royal Assent and came into force. Bill 2 amended British Columbia's Employment Standards Act to provide eligible workers in the province a new statutory holiday, the National Day for Truth and Reconciliation, which commemorates the history and legacy of Canada's residential school system and is observed annually on September 30. A more detailed article is available here.

5. British Columbia Employer that Engaged in "Hardball Tactics" to Manufacture Just Cause for Termination Required to Pay over $200k in Damages

In Chu v. China Southern Airlines Company Limited, 2023 BCSC 21, the court held that an employer that attempted to manufacture just cause for the termination of a vulnerable employee breached its duty of good faith and fair dealing. The employee successfully claimed damages from the employer for wrongful dismissal for failure to provide reasonable notice of the termination of his employment, and aggravated damages and punitive damages based...