Top 10 Developments In Canadian Employment And Labour Law In 2019

2019 brought a number of significant developments to employment and labour law in Canada. We have collected and briefly highlighted our picks, in no particular order, for the top 10 developments from across the country.

1. Arbitration Clauses in Employment Contracts

2. No Tort of Harassment In Ontario

3. Courts Continue to Grapple with Termination Clauses

4. Most Provinces Increase the Minimum Wage

5. Amendments to the Canada Labour Code

6. Important Developments in Alberta

7. Legislative Changes in Quebec

8. Pro Rata Bonus Damages

9. Court Recognizes Distinction Between Shareholder Rights and Common Law Wrongful Dismissal Rights

10. Barring Claims for Constructive Dismissal Arising from Mental Distress

1. ARBITRATION CLAUSES IN EMPLOYMENT CONTRACTS

   Kicking off our list is the Ontario Court of Appeal's (Court of Appeal) first decision of 2019: Heller v. Uber Technologies Inc., 2019 ONCA 1.

   In this proposed class action, the central claim is that Uber drivers are "employees," not independent contractors, and are entitled to the rights established under Ontario's Employment Standards Act, 2000. Before determining that claim, however, the issue before the Court of Appeal was the enforceability of an arbitration clause contained in a services agreement between Uber and its drivers. That clause required the parties to litigate their dispute in the Netherlands. The Court of Appeal found that the arbitration clause was invalid and unenforceable because it sought to "contract out" of the Employment Standards Act, 2000 and, furthermore, was unconscionable.

   The Supreme Court of Canada (Supreme Court) heard Uber's appeal of this case in November 2019 and a decision is pending. We expect that the Supreme Court's decision will have implications on the enforceability of arbitration clauses in employment contracts going forward, and potentially wider implications for those businesses in the "gig" economy space.

2. NO TORT OF HARASSMENT IN ONTARIO

   In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the Court of Appeal confirmed that there is no tort of harassment in Ontario. The Court of Appeal concluded that the law was not sufficiently evolved to recognize a new tort and there was no compelling policy rationale to do so.

   This ruling reversed a decision of the lower court, which awarded damages of C$100,000 to the respondent employee, and provided much needed clarity to the law. While harassment is still relevant in other contexts—such as under the Human Rights Code, the Occupational Health and Safety Act and potentially in the context of a claim of constructive dismissal—we now know that in Ontario employees cannot allege an independent claim for damages solely on the basis of alleged harassment.

3. COURTS...