Canadian Employment Law Trends: Looking Back and Moving Forward

In 2022, the Canadian employment law landscape continued to evolve. We have summarized some of the most noteworthy developments from last year to help you stay up-to-date and share our outlook of which trends will likely continue throughout 2023.

ONTARIO LEGISLATIVE CHANGES

• As of June 2, 2022, employers in Ontario with 25 or more employees are required to have a disconnecting from work policy. For more information, please read our April 2022 Blakes Bulletin: Disconnecting from Work: Ontario Employers to Create Policy.

• As of October 11, 2022, employers in Ontario with 25 or more employees are required to have a written policy on the electronic monitoring of employees. For more information, please read our October 2022 Blakes Bulletin: Ontario’s Employee Electronic Monitoring Policy: October 11 Deadline Approaching.

QUEBEC LEGISLATIVE CHANGES

• On May 24, 2022, Bill 96, An Act respecting French, the official and common language of Québec (Bill 96), which amends the Charter of the French Language (Charter), was adopted by Quebec’s National Assembly. Bill 96 sets out new requirements and, in some cases, increases existing requirements for employers in Quebec pursuant to the Charter. For more information, please read our May 2022 Blakes Bulletin: New French Language Requirements for Employers: Are You Ready?.

• On September 22, 2022, certain amendments from Bill 64, An Act to modernize legislative provisions as regards the protection of personal information, to Quebec’s Act respecting the protection of personal information in the private sector (Quebec Privacy Act) and the Act to establish a legal framework for information technology (Quebec IT Act) came into force. For more information, please read our September 2022 Blakes Bulletin: Employers Must Prepare for the Transformation of Quebec’s Privacy Regime.

OTHER NOTEWORTHY LEGISLATIVE CHANGES

• In June 2022, British Columbia amended its Labour Relations Code to permit the automatic certification of workplaces where 55% or more of employees sign union membership cards. A vote will still be held where between 45-55% of employees in a workplace have signed cards.

• In December 2022, the Canada Labour Code’s (CLC) new paid medical leave provisions came into force, providing employees in federally regulated workplaces with access to a maximum of 10 days of paid medical leave per calendar year. These paid sick days are in addition to the much longer unpaid sick leave entitlements that are available under the CLC. For more information, please read our November 2022 Blakes Bulletin: Federal Employees to Accrue New Paid Medical Leave Days Starting December 1, 2022.

CONSTRUCTIVE DISMISSAL

• The Alberta Court of Appeal (ABCA) released a significant decision on constructive dismissal in Kosteckyj v. Paramount Resources Ltd. In that case, the ABCA emphasized that employees will need to act quickly when they are faced with unilateral changes to their terms and conditions of employment. Otherwise, they will be seen to have consented to the changes at issue and will be hard-pressed to make successful constructive dismissal claims.

AMENDMENTS TO THE COMPETITION ACT

• The federal government has enacted new prohibitions on wage-fixing and no-poach agreements through amendments to the Competition Act. For more information, please read our September 2022 Blakes Bulletin: Competition Act Restrictions on Agreements Between Companies on Employment Terms: What You Need to Know.

JURISDICTION OF LABOUR ARBITRATORS

• The 2021 Supreme Court of Canada decision in Northern Regional Health Authority v. Horrocks clarified the legal tests that apply to determine the circumstances in which labour arbitrators and human rights authorities will have concurrent or exclusive jurisdiction over claims. Developments in that regard continued following the case, such that the question of jurisdiction remains a nuanced issue and needs to be considered in light of the legislative regime in each province.

COVID-19 CASE LAW

• A significant number of cases on vaccination policies across Canada in 2022 generally supported the imposition of such policies in the workplace. That said, all such cases were very much “context specific” and decision makers were always careful to balance the safety benefits of vaccination against the intrusion on employee privacy in each circumstance. For more information, please read our December 2022 Blakes Bulletin: COVID-19 Vaccination Policy Decisions in Canada and October 2022 Blakes Bulletin: B.C. Supreme Court Upholds Employers’ Right to Implement COVID-19 Vaccine Mandates.

LOOKING FORWARD

We expect that employment and labour law will continue to develop in meaningful ways over the coming year. We expect that:

• Remote and hybrid work will continue to pose challenges to employers in terms of workplace culture, productivity and employee flexibility

• Termination clauses in employment agreements will continue to be litigated, with potentially inconsistent results

• Employers will ensure respectful workplaces by taking steps to mitigate the risk of employee misconduct complaints and appropriately addressing those that arise

• Quebec employers must stay vigilant and aware that the labour tribunal continues to use its power to reinstate dismissed employees; and further guidance is expected from the Quebec regulator on the details of language compliance matters

• Increased restructuring will lead to additional case law on notice periods and constructive dismissal.

For further information, please contact any member of our Employment & Labour group.