Amendments to the Ontario Employment Standards Act, 2000 and Other Legislation

On March 20, 2023, the Ontario government tabled Bill 79, Working for Workers Act, 2023. If passed, Bill 79 would amend several statutes including the Employment Standards Act, 2000, the Occupational Health and Safety Act, and the Employment Protection for Foreign Nationals Act, 2009.

Group Terminations

Section 58 of the Employment Standards Act, 2000 (ESA) provides for enhanced notice of termination and special procedural rules where 50 or more employees are terminated within the same four-week period at an employer’s “establishment.” Bill 79 would broaden the definition of “establishment” to include a private residence of an employer’s employee if the employee performs work in the private residence and the employee does not perform work at any other location where the employer carries on business. As a result, employees who work solely from home would be eligible for the same enhanced notice provided to on-site employees if a group termination occurs.

In addition, Bill 79 would amend the ESA to require employers to provide copies of Form 1 (the document setting out required information in a group termination) both to the Director of Employment Standards and to each employee affected by the group termination.

Reservist Leave

Bill 79 would amend the existing ESA reservist leave in a couple of ways. First, the scope of the leave would be expanded to include periods of time where an employee is “in treatment, recovery or rehabilitation in respect of a physical or mental health illness, injury or medical emergency” that arose during their deployment or training activities. Second, the default minimum period of employment to qualify for the leave would be reduced from three months to two months.

Protections for Foreign Nationals and Related Recruiter Licensing Requirements

Bill 79 would also strengthen protections for foreign nationals. First, it would amend the ESA by enhancing the licensing requirements for recruiters and those who use third parties to assist with the recruitment and employment of foreign nationals. In this respect, the licensing requirements would focus both on persons who directly charge fees prohibited under section 7 of the Employment Protection for Foreign Nationals Act, 2009 (EPFNA) and those who collect such fees that have been charged by others.

Under the EPFNA, employers and recruiters (and persons acting on their behalf) are prohibited from taking possession of or retaining the property of a foreign national, including their passport or work permit. Bill 79 would establish significantly higher maximum fines for individuals and corporations who are convicted of taking possession of or retaining a foreign national’s passport or work permit. As well, Bill 79 would amend the EPFNA to provide that the Ontario Labour Relations Board (Board) would be required to reduce penalties associated with notices of contravention related to a person taking possession of or retaining a foreign national’s passport or work permit where the Board determines that the penalty is “excessive in the circumstances or is, by its magnitude, punitive in nature….”

Increased Fines under the Occupational Health and Safety Act

Bill 79 proposes to increase the maximum fine that may be imposed on a corporation convicted of an offence under the Occupational Health and Safety Act (OHSA) from $1.5 million to $2 million.

Other Matters

Earlier in March, the government announced a proposed regulatory change to require employers to provide new hires with written information about their job, such as pay, work location and hours of work. While Bill 79 does not directly set out such requirements, it would amend the government’s regulation-making authority to allow the government to specify what written information must be provided to “employees and prospective employees,” thus laying the foundation for future regulations that would establish those requirements.

Other changes announced earlier in March pertain to new requirements on construction sites relating to women-only washrooms and properly fitting clothing and personal protective equipment for women and diverse body types (see our prior communication Ontario Proposes New Requirements on Construction Sites), as well as expanded presumptive cancer coverage for firefighters (see our prior communication Ontario Expanding Presumptive Cancer Coverage for Firefighters to include Thyroid and Pancreatic Cancers).

Coming Into Force

The changes to the EPFNA and OHSA will come into effect on the day that Bill 79 receives Royal Assent.

The amendments to the ESA have a range of commencement dates. The new reservist leave provisions will come into force on Royal Assent. The amendments to the group termination provisions will come into effect on the later of July 1, 2023 or the date that Bill 79 receives Royal Assent. The amendments to the licensing provisions are timed to come into effect at the same time that the ESA’s new licensing provisions for temporary help agencies and recruiters take effect.

We will continue to monitor the progress of Bill 79 and report on further developments. If you have any questions about Bill 79 or how it might impact your workplace, please contact your regular Hicks Morley lawyer.