Top Five Cases of Importance to Ontario Employment Law - 2017 Edition

2017 has been an incredibly busy year for Ontario employment law practitioners. In addition to the changes to the common law brought about by the decisions considered in this post, one would be foolish to omit any reference to the sweeping changes recently ushered in by the Wynne government as a result of the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22 (“Bill 148”). Readers wishing more information about those legislative changes should consider this post: Bill 148 and Changes to the Employment Standards Act, 2000.

The point of this blog post, however, is to consider what I consider to be the “Top Five Cases of Importance to Ontario Employment Law”. I have produced such a list since 2012:

• 2012
• 2013
• 2014
• 2015
• 2016

And so, with another year coming to a close, it is once again time for this Ontario employment lawyer to provide his picks for the (trumpets, please)… Top Five Cases of Importance to Ontario Employment Law.

The Statutory Right to Paid Sick Leave and What Constitutes “Evidence Reasonable in the Circumstances”

Amongst the changes ushered in by the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22, formerly Bill 148, is the provision of two paid days of “personal emergency leave”. For most people, this translates into two paid days of ‘sick leave’.

Although previously provided as subsection 50(7), newly minted subsection 50(12) of the Employment Standards Act, 2000 will provide that, “Subject to subsection (13), an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”

The catch is newly added subsection 50(13), which provides that, “An employer shall not require an employee to provide a certificate from a qualified health practitioner as evidence under subsection (12).” Read: an employer cannot require an employee to produce a doctor’s note in order to prove that the employee was entitled to take such paid sick leave / personal emergency leave.

This got me thinking, if employers cannot ask for a doctor’s note, then what qualifies as “evidence reasonable in the circumstances”.

Bill 148 and Changes to the Employment Standards Act, 2000

On November 22, 2017, the Ontario Government passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22. The Bill received Royal Assent on November 27, 2017.

This post focuses primarily on the Employment Standards Act, 2000 and the implications to Ontario employment law, rather than labour law.

UPDATE: Nearly one year later to the day, November 21, 2018, the Ontario Government, now under a Conservative government, passed Bill 47, the Making Ontario Open for Business Act, 2018, S.O. 2018, C.14. A major effect of Bill 47 was to undo much, but not all of what had been introduced by Bill 148. For a summary of the changes made by Bill 47, see my post Bill 47 - The Making Ontario Open for Business Act, 2018.

Ontario Court Allows Random Drug Testing to Continue Pending Labour Grievance

Can they pee test me? In any discussion that I have concerning the legalization of cannabis, this is the question employees want answered. “Can I pee test them?” Is the question to which employers want answers.

In yet another case to look at the issue of random drug and alcohol tests, Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 (CanLII), Associate Chief Justice of the Ontario Superior Court of Justice Frank Marrocco ruled that the TTC could continue its program of random testing pending the resolution of a labour grievance filed by the union.

Mooch Ado About Nothing: Being Fired Before You Begin

Can you be fired from your job before you even begin it? As preposterous as that question may sound, that was the very question with which the Supreme Court of British Columbia found itself faced in the case of Buchanan v Introjunction Ltd., 2017 BCSC 1002 (CanLII).

Working Notice Inappropriate for Employees on Disability Leave

Few things in law are certain. Even fewer things in life are certain. In fact, it is said that only two things in life are certain: death and taxes. Allow me to submit that there is one more thing in life of which you can be certain: your mother is, was, and will be correct.

Among the myriad things about which your mother was correct is the fact that if you were too sick to go to school, then you were too sick to go out and play once your friends got home from school.

I raise this tautology, actually a repetition of an argument that I made in paper that I authored in 2010 titled Sick of Work? The Legal Minefield of Workplace Burnout, in respect of the case of McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073, which held that working notice was inappropriate for an employee absent from work on medical leave.

Brave New World: ONCA Says that in Asset Transaction, an Offer of Employment is Sufficient Consideration for Material Changes

In an asset-sale transaction, if the purchaser offers to employ an employee of the vendor, can the purchaser vary some (or all) of the fundamental terms of the employee’s employment contract and rely on the offer itself as sufficient legal consideration for such changes?

In the case of Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873, Ontario’s top court ruled that it can.