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Substance Over Form: Are the Less Discussed Provisions of Bill 27, Working for Workers Act, 2021, More Likely to Impact the Quality of Employment in Ontario?

Substance Over Form: Are the Less Discussed Provisions of Bill 27, Working for Workers Act, 2021, More Likely to Impact the Quality of Employment in Ontario?

By:

Mann Lawyers

Posted December 16, 2021

On December 2, 2021, Bill 27, Working for Workers Act, 2021, (“WFWA”) received Royal Assent, becoming law in Ontario. This omnibus piece of legislation amended multiple statutes.

Media Focus

Some of the ESA amendments found in the WFWA gained most of the media’s attention. The ESA has historically been politicized in Ontario and its amendments used in hopes of swaying favour for the party of the day. Two of the ESA amendments found in the WFWA have been front and centre for commentary and debate. The first is the new mandatory “disconnecting from work” policy for employers with more than 25 employees. The second is a statutory ban on the use of “non-competition” clauses in employment contracts, subject to exemptions.

As laudable as these amendments might look at first glance, their substance is not as certain. First, with respect to the right to disconnect from work, the only right that exists at this point is a right to a policy to disconnect.  We anticipate that regulations will be forthcoming in the New Year. Whether these policies will be effective in ensuring that workers are truly able to disconnect from work is yet to be seen.

Second, non-competition clauses have already been de facto illegitimated by the Canadian common law. Subject to limited circumstances – notably, circumstances just like those found in the WFWA’s exemptions – non-competition clauses have been upheld as valid in Canadian courts with increased rarity. Having a ban on non-competition clauses written directly into statute will hopefully educate more people on their employment rights. But, beyond this educatory function, the substance of the new restrictive application of non-competition clauses has been established by the courts long ago.

Further Important Provisions

In addition to the above ESA provisions, the WFWA made several important legislative amendments, most of which gained little media attention or none at all. This blog will only discuss two of the amendments; however, the whole WFWA may be viewed here.

First, the WFWA has arguably improved the possibility for foreign trained professionals to access employment in Ontario in their chosen fields. The WFWA amended the Regulated Professions and Compulsory Trades Act, 2006, to significantly limit the practice of regulated professions in Ontario requiring Canadian work experience requirements as qualifications for registration in each respective profession. Additionally, the WFWA has amended the Employment Protection for Foreign Nationals Act, 2009, to ban recruiters and/or employers in Canada from indirectly charging fees to the employee being recruited. Notably now, if a corporate employer charges fees directly to a recruit, or indirectly through another recruiter, the directors of the corporation can be held jointly and severally liable to repay those fees to the recruit. As someone working in a regulated profession who watches internationally trained and educated professionals struggle to establish themselves in Ontario, these amendments are a welcomed development.

Second, the Workplace Safety and Insurance Act, 1997, has been amended to allow the Workplace Safety and Insurance Board (“WSIB”) to distribute the WSIB’s surplus to employer’s if the surplus reaches levels between 115 per cent and 125 per cent. Currently, the WSIB surplus sits at 119 per cent and is approximately 6.1 billion dollars. The WFWA’s amendments are an opportunity for employers in Ontario with a positive safety record to not only lower their WSIB insurance premiums, but also be rewarded for their safety through a potentially substantial insurance payment refund.

Conclusion

Regardless of which provisions received the attention, the WFWA has implemented important amendments to many of Ontario’s employment statutes. The true implications of the WFWA are yet to be seen. However, one thing is certain. In the constant changing dynamics of Ontario’s employment legislation, the WFWA has the potential to bring about some significant and tangible change in the province.

This blog post was written by Filip Szadurski, a lawyer in the Employment team.  He can be reached at 613-566-2060 or at filip.szadurski@mannlawyers.com.

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