25 Key Developments In Canadian Labour And Employment Law In 2022

• Jurisdiction: Canada
• Law Firm: Littler - Canada
• Subject Matter: Employment and HR, Health & Safety, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Author: Ms Rhonda B. Levy, Barry Kuretzky, George Vassos and Monty Verlint
• Published date: 04 January 2023

In 2022, Canada saw significant statutory and case law developments in labour and employment law, some of which related to COVID-19. This Insight provides an overview of key 2022 developments, with links to more detailed articles and commentary.

1. In 2022, we continued to see a steady flow of arbitration awards in Ontario and British Columbia that considered issues relating to mandatory COVID-19 vaccination policies in the unionized workplace. The "weight of authority" supported the imposition of vaccine policies in the workplace to reduce the spread of COVID-19, provided that employers complied with their obligation to accommodate employees under human rights legislation The arbitrators concluded that the authority to impose such policies arose from management's right to implement reasonable rules and regulations under the collective agreement, and from the employer's duty to take necessary measures to protect the health and safety of workers under occupational health and safety legislation, which outweighed the minimal intrusion on the employee's privacy rights. Arbitrators noted that context is an important factor to consider because reasonableness of a vaccination policy in a pandemic is contextual and highly dynamic As well, the view was quite consistent that a mandatory vaccination policy that contemplated the possibility of discipline or termination upon an employee's non-compliance with a mandatory vaccination policy was reasonable provided that the alternative was included in a manner consistent with the terms of the collective agreement; employees were warned that termination of employment was possible; and the employer inquired about individual circumstances and, when feasible, accommodated them. More detailed articles are available here.
2. Ontario's Bill 27, Working for Workers Act, 2021 (Act), became law on December 2, 2021. Among other things, the Act amended the Employment Standards Act, 2000 to prohibit employers from entering into an employment contract or other agreement with an employee or an applicant for employment that is or that includes, a non-compete agreement. (This prohibition does not apply upon the sale of a business or if the employee is an "executive.") The Act provides that the prohibition against non-compete agreements is deemed to be in force effective October 25, 2021; however, it does not indicate whether the prohibition applies to non-compete clauses entered into prior to October 25, 2021. This question was answered by Ontario's Superior Court of Justice in Parekh et al v. Schecter et al, 2022 ONSC 302, when it held that the prohibition does not apply to non-compete agreements entered into prior to the prohibition's effective date of October 25, 2021. Such non-compete agreements may be enforceable in accordance with the common law, but on an exceptional basis and only if the employer can establish that the non-competition restriction is reasonable in all respects. A more detailed article is available here.
3. In Currie v. Nylene Canada Inc., 2022 ONCA 209, the Ontario Court of Appeal (OCA) dismissed the employer's appeal of a lower court decision in which the trial judge held "exceptional circumstances" existed to justify making an award that exceeded the 24-month "high end" amount of reasonable notice for long-term employees and awarded 26 months' salary in lieu of notice. The OCA rendered this decision despite its own 2019 decision in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, in which it reduced a 30-month reasonable notice award to 24 months following judicial precedent that held that although factors such as senior position long-term/career-long years of service of a dedicated and loyal employee at the same company, advanced age at the time of termination, and difficulty finding new employment warranted a substantial notice period, such factors are already "recognized" and "rewarded" by the 24-month notice period, and they do not establish "exceptional circumstances." In light of these competing decisions, the law has been rendered uncertain. A more detailed article is available here.
4. On April 11, 2022, Ontario's Bill 88, Working for Workers Act 2022 (Bill 88) received Royal Assent and became law. Among other things, Bill 88 amended the province's Employment Standards Act, 2000 to require certain employers to ensure that they have a written policy in place for all employees with respect to electronic monitoring of employees (Policy) by October 11, 2022, and to provide a copy to existing employees by November 10, 2022. On July 13, 2022, in its Your guide to the Employment Standards Act, Ontario published employer guidance for complying with the Policy. More detailed articles are available here and here.
5. Bill 88, Working for Workers Act, 2022 also amended Ontario's Occupational Health and Safety Act (OHSA) Among the OSHA amendments is a requirement that certain employers provide and maintain in good condition a naloxone kit in workplaces where they are aware, or ought to be aware, that there may be a risk of a worker having an opioid overdose. On December 8, 2022 Ontario proclaimed Bill 88's amendments to OSHA in force and announced that the naloxone kit requirement will come into force on June 1, 2023. On December 12, 2022, Ontario published Regulation 559/22: Naloxone Kits, which provides additional...