These were the 10 biggest employment law stories of 2023


These are the 10 biggest developments in employment law from 2023.

1. Brand-damaging conduct as cause for discharge

Although I had written about this issue in my columns earlier in the year, such firings became more pronounced following the Oct. 7 atrocities committed by Hamas in Israel, after which employers began to fire for cause or refuse to hire employees who signed anti-Semitic petitions, such as the TMU student petition, or who posted racist content on social media.

Many of the rallies which now demand a unilateral ceasefire — including attempts to shut down Christmas celebrations — are organized by groups who were demonstrating immediately after Oct. 7, notably before Israel even launched its counterattack in Gaza. The ceasefire demand was added later to make the protests more politically saleable, but they often include calls for the eradication of Jews in Israel — i.e. “from the river to the sea.”

2. Pay transparency on the rise

On Nov. 14, the Ontario Government introduced Bill 149, the Working for Workers Four Act, 2023, affecting hiring in that province. The changes include prohibiting employers from including a requirement for Canadian work experience in job postings or application forms and requiring employers to disclose if they use AI in their hiring. But the biggest change was a requirement that employers disclose the expected compensation or pay range in job postings, which is expected to reduce the gender pay gap and the bargaining power of employers in their hiring practices.

British Columbia also got in on the act, passing a Pay Transparency Act which required transparency on pay history and job postings which is intended to have the same impact as Ontario’s law.

3. The old caps on severance are out the window

As recently as January 2023, the courts were quite clear that, absent extraordinary circumstances, 24 months was the maximum amount of wrongful dismissal damages that could be awarded. But the year nevertheless saw many awards greater than that. In Lynch v. Avaya Canada Corporation, the Ontario Court of Appeal upheld a 30-month notice period for a 63-year-old professional engineer. There was nothing “exceptional” in that case’s facts. As result, the sky appears to be the limit in wrongful dismissal cases. The lack of predictability is also leading to more litigation, so expect employers’ severance costs to dramatically increase in the coming year.

4. Enter the Tort of Harassment

In Alberta Health Services v. Johnston, the Alberta Court of King’s Bench awarded of $650,000 in damages, $100,000 of which was for harassment alone. Previously, harassment was not grounds to award damages, but the court recognized that, given that there is a crime of criminal harassment and parties can already sue for internet harassment, it made little sense not to have a civil legal claim for harassment too.

As I have pointed out, employers must respond promptly and investigate harassment complaints as a defence to such a lawsuit. Harassment can also be claimed through Occupational Health and Safety Act, Human Rights legislation, negligence and in the context of a constructive dismissal case, depending, in each case, upon the circumstances.

5. Employers can set their workplace vaccination policies

The Seneca College decision, upheld on appeal, in which I acted for Seneca, made clear that employers had the right to develop vaccine mandates requiring employees (and other workplace attendees) to be vaccinated as a condition of employment. Other cases as well, both in the judicial and arbitration context, have supported the right of employers to suspend or dismiss employees for cause for refusal to vaccinate subject to legitimate medical and religious exemptions.

6. Moral, punitive and aggravated damages are increasingly popular

We have had far more decisions than ever before in 2023. Such damages were awarded for breaching employment standards obligations or for anything the court considered unjust behaviour. The Supreme Court in a series of decisions has noted employees’ vulnerability and courts have protected them through these awards.

7. Termination provisions still being struck

Few employment contracts drafted more than a couple of years ago will survive judicial scrutiny when it comes to termination provisions, which have been struck down frequently if they, in any way, can be interpreted to offer less than the statutory minimums laid out in employment standards legislation.

The result? Full wrongful dismissal damages are provided to the employee, at great cost to employers.

Employers must constantly have their contracts refreshed with specialized counsel to keep up with the courts on this issue.

8. Employees on the hook for time theft

The B.C. case of Besse v Reach CPA Inc. dealt with the issue of time theft, which rose to prominence amid the shift to working from home during the pandemic. In this decision, the tribunal found that Reach CPA Inc. had just cause to terminate an employee for engaging in “time theft.” The employer discovered that the time-tracking program it had installed on the employee’s work laptop revealed that over 50 hours were recorded on her timesheet which the time tracking device found was not worked.

This is a significant decision in the context of remote work and the increasing use of software to ensure that employees are actually working remotely

The company was successful in suing her to repay the value of the time she had stolen. Obviously, this would not apply when the conduct is not wilful.

9. No cutting corners on accommodation

The case of Valiquette v BPM Enterprises Ltd. (Tim Horton’s), heard before the Human Rights Tribunal of Ontario, involved an employee who was terminated after giving her employer a medical note stating some of her physical limitations. The HRTO found that because the employer never met with the employee to fully understand the extent of her disability and to determine if there was a way that they could accommodate her, it had failed to meet the procedural component of its duty to accommodate. The HRTO awarded the employee $35,290.40

10. Record payout in New Brunswick upheld

The case of Dornan v. New Brunswick, which I argued alongside Kelly Van Buskirk, was upheld on judicial review in late December. The $2-million award to our client, Dr. John Dornan, who had been fired from his job as head of the province’s Horizon Health Network by the Premier, was the largest employment law decision and the largest aggravated damages decision in New Brunswick history. It upheld that he would be paid to the end of a fixed-term contract he had signed upon taking the job, and that a new contract he was given and signed with an early termination provision was unenforceable as he had no real choice but to sign it and he was provided nothing new in return for signing it.

The best of 2024 to all of my readers. Let your employment experiences in the year ahead exceed your hopes and expectations.

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