More Changes Coming for Employers in Ontario: Bill-88, Working for Workers Act, 2022

On February 28, 2022, Bill-88 – the Working for Workers Act, 2022, was introduced in the Ontario legislature. If passed, Bill-88 will amend various employment-related legislation in Ontario, including the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act (OHSA), and will create new legislation related to digital platform workers, called the Digital Platform Workers’ Rights Act, 2022 (DPWRA). The government of Ontario is seeking comments from the public on the content of the proposed DPWRA until the end of March 2022. Bill-88 is also subject to revisions as it makes its way through the legislative process. We will continue to monitor for substantive changes and updates.

AMENDMENTS TO THE EMPLOYMENT STANDARDS ACT, 2000

Key proposed amendments to the ESA are as follows:

• Employee monitoring: The ESA will be amended to impose a requirement on employers that employ 25 or more employees to have a written policy with respect to electronic monitoring of employees. The written policy must contain the following information: (a) whether the employer electronically monitors employees and if so, (i) a description of how and in what circumstances the employer may electronically monitor employees, and (ii) the purposes for which information obtained through electronic monitoring may be used by the employer; (b) the date the policy was prepared and the date any changes were made to the policy; and (c) such other information as may be prescribed in the legislation.  A copy of the policy shall be provided to each of the employer’s employees within 30 days from the day the employer is required to have the policy in place or, if an existing policy is changed, within 30 days of the changes being made. The proposed legislation does, however, clarify that the requirement to have such a policy does not affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees.

• Exemptions: The ESA will be amended to provide that, if various conditions are met, the ESA would not apply to certain business consultants and information technology consultants.

• Leaves: The ESA provisions regarding reservist leaves is amended to provide that an employee is entitled to leave if the employee is participating in Canadian Armed Forces military skills training. The section is also amended to provide that an employee is entitled to leave after being employed by the employer for three consecutive months.

AMENDMENTS TO THE OCCUPATIONAL HEALTH AND SAFETY ACT

The key proposed amendments to the OHSA are the requirement for employers to provide naloxone kits if there is a risk of a worker having an opioid overdose in the workplace, as well as various amendments in respect of fines applicable for convictions under the OHSA.
 
The following are the proposed amendments related to fines:  

• The maximum fine under the OHSA is increased from C$100,000 to C$1,500,000 for directors or officers of corporations and to C$500,000 for other individuals.

• A list of aggravating factors to be considered in determining a penalty under the OHSA have now been added, and include the following: (i) the offence resulted in the death, serious injury or illness of one or more workers; (ii) the defendant committed the offence recklessly; (iii) the defendant disregarded an order of an inspector; (iv) the defendant was previously convicted of an offence under the OHSA or another act; (v) the defendant has a record of prior non-compliance with the OHSA or the regulations; (vi) the defendant showed a lack of remorse; (vii) there is an element of moral blameworthiness to the defendant’s conduct; (viii) in committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs; and (ix) after the commission of the offence, the defendant attempted to conceal the commission of the offence from the Ministry or other public authorities, or failed to co-operate with the Ministry or other public authorities. Most of these sentencing factors were already being applied by the courts under common law principles derived from R. v. Cotton Felts Ltd. ([1982] OJ No. 178) and subsequent case law under the OHSA, but the codifying of these factors can be expected to further reinforce their applicability when determining the appropriate penalty for an OHSA violation.

Finally, in a significant change, the limitation period for instituting a prosecution under the OHSA will be extended from one year to two years.

DIGITAL PLATFORM WORKERS’ RIGHTS ACT, 2022

The purpose of the DPWRA is to establish certain rights for workers who perform digital platform work. The DPWRA defines a “digital platform” as an online platform that allows workers to choose to accept or decline digital platform work, being the provision of for-payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform. 
 
The following are the proposed rights for digital platform workers under the DPWRA:

• The right to information, including ongoing information about how pay is calculated, when and how tips are collected, factors used to determine whether work assignments are offered and how they are applied, performance rating systems and a description of any consequences resulting from that system

• The right to a recurring pay period and pay day

• The right to minimum wage as payable under the Employment Standards Act, 2000 – currently set at C$15/hour

• The right to amounts earned by the worker and to tips and other gratuities, subject to the operator’s withholding or deducting such tips and other gratuities pursuant to another statute or court order

• The right to notice of removal from an operator’s digital platform, including a written explanation of why access has been removed and at least two weeks’ written notice where removal is to last 24 hours or longer

• The right to resolve digital platform work-related disputes as between workers and operators in Ontario

• The right to be free from reprisal for asserting rights under the DPWRA

Both workers and digital platform operators are prohibited from contracting out of the worker rights established in the DPWRA, unless doing so provides a greater benefit to a worker.

PROPOSED COMING INTO FORCE DATES

The ESA amendments regarding business consultants and information technology consultants are proposed to come into force on January 1, 2023, while the rest of the ESA amendments are proposed to come into force on the day that Bill-88 receives Royal Assent.
 
The OHSA amendments related to fines and the limitation periods come into force on the later of July 1, 2022, and the day that Bill-88 receives Royal Assent, and the remaining amendments to the OHSA generally come into force on the day that Bill-88 receives Royal Assent.
 
If passed, the DPWRA comes into force on a day to be named by proclamation of the Lieutenant Governor.
 
For more information, please contact any member of our Employment & Labour group.