In late November 2018, Bill 47, the Making Ontario Open for Business Act, received Royal Assent. Bill 47 amends, among other existing legislation, the Ontario Employment Standards Act, 2000 (ESA), and the Ontario Labour Relations Act (LRA).

Bill 47 reversed many of the changes that had been introduced to Ontario’s employment and labour laws through the former provincial Liberal government’s Bill 148 in early 2018, some of which were already in force, and others which would have been in force as of January 1, 2019.

Pending Changes to the Employment Standards Act

Changes to the ESA which will now be in effect as of January 1, 2019 under Bill 47 include:

Employment Standard Current Entitlement Entitlement as of January 1, 2019
Child death leave Bill 148 introduced leave for employees whose child had died (this was distinct from crime-related child disappearance leave). Entitlement will remain the same.
Critical Illness Leave Bill 148 created a broad “critical illness leave” which included the ability for an employee to take leave to care for a critically ill family member (this included children and adult family members).

 

This replaced critically ill child care leave.

Entitlement will remain the same.
Domestic and Sexual Violence Leave Up to 10 individual days and up to 15 weeks, with the first 5 days paid. Entitlement will remain the same.
Employee Classification If an employee’s status is questioned, employers must prove the person is an independent contractor rather than an employee (reverse onus).

 

The reverse onus provision with respect to classifying employees is repealed.
Equal Pay for Equal Work Equal pay for equal work on the basis of employment status (full-time, part-time, casual, seasonal) and for employees referred by temporary help agencies.

 

Equal pay for equal work on the basis of sex for those employees who perform substantially the same job for the same employer.

Equal pay for equal work on the basis of employment status and for employees referred by temporary help agencies is repealed.

 

 

 

 

 

Requirement for equal pay on the basis of sex remains in force for employees who perform substantially the same job for the same employer.

 

 

 

Family Medical Leave Bill 148 increased family medical leave from 8 weeks to 28 weeks. Entitlement will remain the same.
Minimum Wage Minimum wage was supposed to increase to $15/hour on January 1, 2019 under Bill 148. Minimum wage will be frozen at $14/hour until October 1, 2020.

 

Increases following October 1, 2020 will be tied to inflation.

Personal Emergency Leave 10 days leave (with first 2 days paid) where the employee or an employee’s family member has a:

  • Personal illness;
  • Injury;
  • Medical emergency

 

Employers are prohibited from asking for a doctor’s note to substantiate these absences.

 

 

Current entitlements will be replaced by a package of 8 unpaid days of annual leave consisting of:

 

  • 3 unpaid days for personal illness;
  • 2 unpaid bereavement leave days;
  • 3 unpaid days for “family responsibilities”

 

Employees must be employed for at least two weeks with an employer before being eligible for these leaves.

 

Employer will be able to request evidence that is reasonable in the circumstances (including a doctor’s note).

Public Holiday Pay Public holiday pay is calculated based on all regular wages earned by the employee in the pay period immediately preceding a public holiday, divided by the number of days the employee worked during that pay period.

 

Public holiday pay will revert back to the formula that existed prior to Bill 148.

 

It will be calculated based on the total amount of regular wages earned and vacation pay payable to the employee is the four work weeks before the work week in which the public holiday occurred, divided by 20.

Scheduling Changes that were supposed to take place under Bill 148 starting in January 2019:

 

  • Employees would be entitled to 3 hours’ pay if their shift is cancelled within 48 hours prior to shift start;
  • Employees could refuse a change in schedule or on-call shift if the request was made less than 96 hours prior to shift start;
  • Employees would be entitled to 3 hours’ pay if they were on—call but not required to work, or where they worked less than 3 hours;
  • Employees could request changes in their work schedule or location and employers would have to provide reasons for denial of any such request.
Changes scheduled to take place under Bill 148 were mostly repealed.

 

 

Employees who regularly work more than 3 hours a day and are asked to come to work, but who end up working less than 3 hours will be entitled to a minimum of 3 hours’ pay unless their shift is shortened for a reason that is beyond the employer’s control (e.g. power outage, etc.)

Vacation Time/Vacation Pay 3 weeks’ vacation time/pay for employees with 5 or more years of service.

 

2 weeks’ vacation time/pay for employees with less than 5 years of service.

Entitlement will remain the same.

 

Changes to the Labour Relations Act

Changes that came into effect as of November 21, 2018 under Bill 47 include:

  • The repeal of card-based certification in the building services, home care/community services, and temporary help agency sectors, giving workers the right to vote via secret ballot (card-based certification remains in place for the construction sector);
  • Repeal of section 15.1 of the LRA which previously provided the Labour Relations Board (the Board) with the power to amend or consolidate bargaining units in certain circumstances;
  • Restrictions on the power of the Board to remedially certify a union without a vote (restoration of the option for the Board to order a vote or a second vote where the Board decides that the initial vote does not reflect the employees’ true wishes);
  • Removal of first collective agreement mediation and first agreement arbitration as of right (allows the Board to order first collective agreement arbitration in certain circumstances only).

Impact on Employers

After Bill 148 was introduced, many employers made policy changes to ensure that they were meeting their newly introduced obligations. Now that Bill 47 has reversed many of the changes that Bill 148 had implemented, employers should consult with a labour & employment lawyer and obtain advice about the enforceability of their policies.

If you are an employer and have questions about how the changes under Bill 47 may impact you, contact the highly knowledgeable Toronto employment lawyers at Mallins Law. We regularly advise parties on a wide range of employment and labour law issues. Our ultimate goal is to build and foster strong, long-term relationships with our clients and to become their trusted resource for all matters related to the workplace. Contact us online or by phone at 647-792-0310 to schedule a consultation.