Making Ontario Open for Business Act, 2018

The Making Ontario Open for Business Act, 2018 (the “Act”) received Royal Assent on November 21, 2018. The following key changes will be made to the Employment Standards Act, 2000 (the “ESA”) as a result of the passing of the Act:

Employment Standards Act, 2000

  • Minimum Wage – The ESA has been amended to eliminate the proposed minimum wage increase to $15.00. The new minimum wage will be frozen at $14.00 and future increases will be tied to annual inflation adjustments on October 1 of each year beginning in 2020.

  • Onus re Employee – The Act strikes out Section 5.1(2) of the ESA which placed the burden of proof on the employer when it asserted, during the course of an Employment Standards officer’s investigation or inspection, that an individual was not an employee.

  • Three Hour Rule – The Act establishes a three-hour rule which appears to be largely similar to the three-hour rule established by Bill 148. It provides that where an employee who regularly works more than three hours a day is required to report to work, but works less than three hours, the employee will be paid no less than three hours at their regular rate.

  • Public Holidays – The Act has amended the public holiday pay formula, reverting it to the pre-Bill 148 formula (i.e. public holiday pay is calculated based on the total regular wages and vacation pay earned in the four-week period prior to the holiday, divided by 20). The temporary Public Holiday Pay, O Reg 375/18 has been revoked.

  • Equal Pay for Equal Work – The provisions respecting equal pay for equal work based on “employment status” and “assignment employee status” have been repealed, returning the equal pay for equal work protections to apply to sex only. The Act further repealed the obligation established by Bill 148 requiring an employer to provide a written response to any employee who believes that their compensation did not comply with the equal pay provisions of the ESA.

  • General Entitlement to Leaves – The language for the various leaves provided by the ESA have been amended to clarify under the “general provisions concerning leaves” language that each leave applies separately from, and in addition to, every other entitlement to leave.

  • Personal Emergency Leave – The Act amends the ESA to establish three separate personal emergency leaves: (1) sick leave, (2) family responsibility leave, and (3) bereavement leave. The new language does a number of interesting things, including making it explicitly clear that corresponding leaves taken under an employment contract count towards these leave days (i.e. double counting is now explicitly recognized). The three separate leaves provide as follows:

  • Sick Leave – Three unpaid days for personal illness, injury or medical emergency. The employer is entitled to evidence reasonable in the circumstances. The prohibition on asking for a medical certificate has been removed.

  • Family Responsibility Leave – Three unpaid days for the illness, injury or medical emergency or “urgent matter” that concerns an employee’s family members (as defined in the ESA). Please note that the definition of a Family Member has been amended and removes, for example, the catchall term of someone that is considered to be “like a family member” but includes a relative of the employee who is dependent on the employee for care or assistance.

  • Bereavement Leave – Two unpaid days for the death of a Family Member, using the same list as that described in the Family Responsibility Leave.

  • Domestic or Sexual Violence Leave – This leave, which provides 5 paid days of leave, and a total of 17 weeks of leave per year, will remain in place.

  • Scheduling – The scheduling changes that were anticipated to come into force on January 1, 2019 as a result of Bill 148 have been repealed in their entirety, as have the changes related to an employee being entitled to request changes to their schedule or work location.

  • Record Keeping – The Act repeals the record keeping obligations established by Bill 148 related to scheduled work days and on call periods.

Labour Relations Act, 1995

In addition to the changes made to the ESA, the Act revokes most of the changes made to the Labour Relations Act, 1995 (“LRA”) by Bill 148. In particular, the Act has made the following key changes to the LRA:

  • Employee Lists – The right given to unions to request and be provided with employee lists from an employer has been revoked. Lists that were ordered by the Ontario Labour Relations Board (“OLRB”) must be destroyed.

  • Remedial Certification – The language introduced by Bill 148 making remedial certification mandatory has been replaced with the previous language stating that the Board may order a representation vote, or another representation vote, or certify a trade union.

  • First Collective Agreements - The new collective agreement mediation and mediation-arbitration provisions have bene repealed and replaced with a new section providing for first collective agreement arbitration.

  • Restructuring Bargaining Units – The new language related to when the Board may review the structure or bargaining units and the types of orders it may make in that regard have been repealed.

  • Alternative Trade Union Certification Process – The new alternate trade union certification process established for building services industry, the home care and community services industry and the temporary help agency industry, have been repealed.

  • Educational Support – The new provisions providing educational support related to labour relations and collective bargaining has been repealed.

  • Successor Employer Rights – The LRA had been amended to provide successor employer rights to other types of service provides. This has been repealed.

  • Reinstatement of Employee – Bill 148 had amended the LRA to remove the 6-month time limitation on an employee’s right to bring an application to be reinstated following a lawful strike. The 6-month time limitation has been reintroduced by the Act.

  • Fines – The maximum fine for an offence under the LRA has been lowered from $5000 to $2000 for individuals and from $100,000 to $25,000 for corporations.